20 Fla. L. Weekly Supp. 1097a

Online Reference: FLWSUPP 2011GALDInsurance — Personal injury protection — Coverage — Medical expenses — Insurer that did not incorporate permissive statutory fee schedule in PIP policy is not entitled to limit reimbursement for MRI to 200% of Medicare fee schedule where it has not demonstrated by some alternative means that 200% of Medicare fee schedule is maximum reasonable amount — Where expert witness offered by insurer in opposition to summary judgment on issue of reasonableness of MRI charge relied upon undisclosed data to form opinion that amount equal to 200% of Medicare fee schedule is only reasonable charge for MRI, witness did not qualify as expert — Offered as fact witness, witness’s testimony is inadmissible lay opinion under guise of fact testimony — Summary judgment granted in favor of medical provider

MILLENNIUM RADIOLOGY, LLC., D/B/A MILLENNIUM OPEN MRI, (Melvin Galdamez), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-17792 COCE 53. September 9, 2013. Robert W. Lee, Judge. Counsel: Caroline Perlegas, Marks & Fleischer, P.A., Fort Lauderdale, for Plaintiff. Sean Sweeney, for Defendant.

ORDER GRANTING PLAINTIFF’S SECOND AMENDEDRENEWED MOTION FOR FINAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on September 4, 2013, for hearing of the Plaintiff’s Second Amended Renewed Motion for Final Summary Judgment, and the Court having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:

Pursuant to this Court’s prior ruling on Plaintiff’s Motion for Final Summary Judgment November 28, 2011, the only remaining issue is whether an amount above $1,206.74 for the MRI at issue is a reasonable charge. The parties engaged in additional discovery and Plaintiff renewed its Motion for Summary Judgment with new evidence on the sole remaining issue.

In support of its Second Amended Renewed Motion for Final Summary Judgment, Plaintiff submitted the affidavits of Roberta Kahana, an owner and corporate representative of Millennium Radiology. Ms. Kahana attests Plaintiff’s charges were reasonable, and usual and customary, based on her personal knowledge at the time the charges were established of Millennium Radiology company’s billing practices, office procedures, collection practices, reimbursement trends, and amounts others were charging for similar services in the community. She further attests Millennium Radiology regularly and consistently received reimbursements of 80% of its charge of $2,150.00 (or 100% if the policy contained medical payments) from No-Fault Insurers who did not apply the permissive 200% Medicare limited reimbursement or adopt same in their policies. The Court finds the affidavits satisfy Plaintiff’s burden to set forth its prima facie case that the amount of $2,150.00 for the MRI service at issue is reasonable. Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So.2d 700, 702 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c].

In opposition, Defendant relies upon the deposition testimony of Monica Johnson, its designated expert witness and corporate designee/fact witness regarding reasonableness of pricing and her subsequently filed affidavit. The Plaintiff argues the Defendant failed to establish a disputed issue of material fact through Ms. Johnson’s affidavit and deposition testimony. This Court agrees.

Once a party moving for summary judgment presents competent evidence to support its motion for summary judgment, that party is entitled to summary judgment unless the non-moving party can come forward with competent evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla. 1979). Under Rule 1.510(e), a court may consider evidence at a summary judgment hearing only if it would be “admissible in evidence.”

Pursuant to Fla. Stat. §627.736(5)(a)(1), in determining a reasonable charge, “consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.” Here, Defendant has failed to present competent, admissible evidence to rebut Plaintiff’s prima facie showing that their charge is reasonable.

Initially, the Court notes that the Defendant has listed Monica Johnson as its expert witness with regard to “reasonableness,” Pursuant to Fla. Stat. §90.702(1) (2013), the party presenting expert opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data” and the testimony is the product of reliable principles and methods which the witness has applied reliably to the facts of the case. See Pan Am Diagnostic Services, Inc. v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp. 937a (Broward Cty. Ct. 2013). Over two days, Plaintiff deposed Ms. Johnson at length to determine the basis for her opinion that the medical charges billed at issue in this litigation are not reasonable in price. Ms. Johnson testified that in her experience as an adjuster, she has reviewed MRI bills in amounts ranging from $800.00 to $2,200.00 in non-hospital settings, but despite having reviewed those amounts billed, she did not maintain any chart, calculate any average or mean amount that was billed, and did not use those charges to derive a formula to support her conclusion that 200% of Medicare is a “reasonable charge.” (Dep. Monica Johnson part I, p. 18, 11. 3-12; Dep. Monica Johnson part II, p. 4, 11. 8-25; p. 5, 11. 1-8; Dep. Monica Johnson, part II, p. 12, 11. 13-19). Defendant’s “expert” could not provide any information as to specific HMO or PPO reimbursements or amounts which were considered in reaching her conclusion and had no underlying data to substantiate her position. (Dep. Monica Johnson, part II p. 86, 11. 7-11). In fact, when asked for the basis and underneath data to support to the conclusion that 200% of Medicare is reasonable based on reimbursement levels, Ms. Johnson testified she has no compilation, no analysis, no spreadsheet, had no formula, no average, and no equation and that her conclusion is based upon the underlying data of every claim United Auto has ever processed, which she did not review. (Dep. Monica Johnson, part II, p.19, 11. 21-23; p. 86, 11. 21-25, p. 126, 1. 25 to p. 127 1. 5; p. 129, 11. 15-25). Here, there is absolutely no evidence of sufficient data utilized to support the ultimate conclusion offered by the Defendant’s expert.

In her affidavit and testimony, Ms. Johnson completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider. Similarly, she excludes consideration of any amounts above 200% of Medicare in reaching her ultimate conclusion that an amount equal to 200% of Medicare is a reasonable charge. (Dep. Monica Johnson, part I, p. 12, 11. 1-22; part I p. 35, 11. 14-18; part II p. 95,11. 7-16). In essence, Defendant’s expert’s ultimate opinion excludes any data which could cause an increase in the outcome, and clearly, without any methodology, cherry picks only whatever supports her opinion.

Under the amendments to the Florida expert opinion law, a party faces a greater burden in presenting expert opinion than it did under the former law. Under the new law, the proponent of the opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data.” The Defendant did not meet its burden in doing so, because Monica Johnson relied exclusively on undisclosed “underlying data,” and the Defendant failed to produce the underlying data or meet its burden to make it available for inspection. See Fla. Stat. §§90.702(1) (2013), 90.956 (2012); Rule 1.510(e).

The Defendant has provided nothing more than a parroting of the general factors set forth in the statute for determining whether a charge is reasonable. The Court notes that under the PIP statute, an insurer must pay an amount billed if the amount billed is “reasonable.” There is generally not a single amount that is “reasonable,” but rather a range. If the provider’s charge falls within that range, the insurer must pay it, even if there are amounts lower in the range of reasonableness. Conveniently, however, Monica Johnson offered an opinion that the amount billed by the Plaintiff was not only unreasonable, but that an amount equaling 200% of the Medicare Part B fee schedule is the only “reasonable” amount that should have been reimbursed. As the Defendant is not permitted to use the “200% of Medicare” methodology unless that amount happens also to be a “reasonable” amount standing on its own, it is crucial that the underlying data to support this conclusion be disclosed. The Defendant has had ample opportunity to do so, and has failed in this regard.

By failing to have knowledge of any underlying data and specifically excluding any amounts greater than 200% of Medicare, Defendant has not demonstrated to this Court that the testimony is based upon sufficient facts or data, nor that the testimony is the product of reliable principles and methods. Therefore, Ms. Johnson does not qualify as an expert pursuant to Fla. Stat. §90.702(1) (2013).

In the alternative, the Defendant relies upon Monica Johnson as its corporate designee and fact witness. However, in this regard as well, the testimony and affidavit fail to present admissible evidence which would create a genuine issue of material fact. She did not provide fact testimony as to why the payment was reduced and the factors that United Automobile took into consideration at the time it reduced its payment — this is what a fact witness does. Instead, the Defendant is attempting to cloak Ms. Johnson’s opinion testimony under the cover of fact testimony, which it clearly is not. The opinion offered (that 200% of Medicare is a reasonable amount for the service at issue) is inadmissible lay opinion testimony. Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived, and usually involves matters such as distance, time, size, weight, form and identity. Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1991), citing Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So.2d 140 (Fla. 4th DCA 1985). See also United Automobile Ins. Co. v. Miami Neurology Rehabilitation Specialists, 19 Fla. L. Weekly Supp. 799a (11th Cir. Ct, 2012) (appellate capacity) (testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness, and not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702). Essentially, Defendant’s corporate designee’s opinion is that 200% of Medicare is the amount United Automobile found to be reasonable, so she agrees with that position. (Dep. Monica Johnson part II, p. 83, 11. 18-19; p. 88, 11. 22-24). Ms. Johnson’s experience has been only to reimburse claims at 200% of Medicare Part B as she testified she pays all codes at 200% of Medicare Part B and has never allowed any reimbursement over 200% of Medicare Part B. (Dep. Monica Johnson, part II, p. 33, 11. 8-10; part I, p. 12, 11. 1-22). Thus, as a matter of law, the opinions offered by Monica Johnson are not rationally based on her own perception and are not the type of lay opinions which can be relied upon by the Defendant. In addition, conclusory statements are not adequate to create an issue of fact and are insufficient to avoid summary judgment.

It is well settled that in order to take advantage of the more limited reimbursement provided by Fla. Stat. §627.736(5)(a)(2)(f), the insurer must specify that method to the exclusion of any others. Geico General Insurance Co. v. Virtual Imaging Services, Inc., 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] aff’d __ So. 3d __, 2013 WL 3332385 (Fla. 2013) [38 Fla. L. Weekly S517a]; DCI MRI, Inc. v. Geico Indem, Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; Geico Indem. Co. v. Virtual Imaging Servs., Inc., 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. Defendant is not permitted to use the “200% Medicare” methodology to limit reimbursement unless it can demonstrate that amount is the maximum reasonable amount under some alternative means. Virtual Imaging Servs., 79 So.3d at 57 (“Furthermore, as section 627.736(5)(a)(2) provides that insurers ‘may’ consult the Medicare fee schedule, it follows that, under the statute, insurers who choose not to do so have recourse to some alternative means for determining a reimbursement amount.”). For the reasons stated above, Defendant has not come forward with any admissible evidence demonstrating it paid a “reasonable” amount which would create a genuine issue of material fact. Accordingly, it is hereby

ORDERED AND ADJUDGED that the Plaintiff’s Second Amended Renewed Motion for Final Summary Judgment is GRANTED. The Plaintiff is directed to submit to the Court a proposed final judgment. The October 2, 2013 Non-Jury Trial is hereby canceled.

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