20 Fla. L. Weekly Supp. 28a
Online Reference: FLWSUPP 2001DORInsurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered services — Patient Self Referral Act — Order granting summary judgment determining that medical provider who referred insured to pain management clinic of which provider is sole shareholder violated Patient Self Referral Act — Trial court erred in weighing conflicting evidence to conclude that cross-referral arrangement put in place by provider and clinic did not fall within any exclusions in Act and, therefore, disclosure did not cure violation
PHYSICIANS PAIN & REHAB CENTER, INC. (a/a/o Charles Dor); and PAIN MANAGEMENT OF SOUTH FLORIDA, INC. (a/a/o Charles Dor), Appellants, vs. NATIONAL SPECIALTY INSURANCE COMPANY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 09-020052 CACE (08). L.T. Case No. 05-018698 COCE (51). September 4, 2012. Dale Ross, Judge. Counsel: Marlene S. Reiss, Marlene S. Reiss, P.A., Miami, for Appellants. Jose Font, Vernis & Bowling of Broward, P.A., Hollywood, for Appellee.
OPINION
(ROSS, Judge.) THIS CAUSE came before the court, sitting in its appellate capacity, upon appeal by Appellants, Physicians Pain & Rehab Center (a/a/o Charles Dor) and Pain Management of South Florida, Inc. (a/a/o Charles Dor) of the trial court’s order granting summary judgment. The court, having considered the briefs filed by the parties, being duly advised in premises and law, dispenses with oral argument, and finds and decides as follows:
On June 18, 2005, Charles Dor (“Insured”) suffered injuries when he was involved in a motor vehicle accident. Approximately five days later, the Insured sought care at Physicians Pain & Rehab Center (“Physicians Pain”). Dr. Bonneau, a licensed chiropractor, concluded that it was necessary to refer the Insured to Pain Management of South Florida (“Pain Management”) for further care. Physicians Pain and Pain Management are two separate and distinct Florida corporations owned by Dr. Dennis Bonneau. National Specialty Insurance Company (“National”) is a personal injury protection benefits (“PIP”) insurer that denied Appellants’ claim for PIP benefits that was made on behalf of the Insured.
On September 12, 2009, National moved for summary judgment on its ninth affirmative defense, arguing that the treatment provided to the Insured by Physicians Pain was not “lawfully rendered” because Physicians Pain allegedly “self-referred” the Insured to Pain Management for medical services. The trial court heard extensive argument on October 24, 2008 and January 30, 2009. The trial court granted summary judgment, ultimately concluding that Physicians Pain violated Florida Statutes section 456.053 by self-referring the Insured to Pain Management. Appellant filed a timely appeal.
The standard of review for the entry of summary judgment is de novo. See Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 479-80 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1100a]. Under Florida law, in “the absence of some proof contradicting an affirmative defense, entry of summary judgment is improper.” See Fla. Web Printing, Inc. v. Impact Adver., Inc., 723 So. 2d 884, 885 (Fla. 2d DCA 1998) [24 Fla. L. Weekly D88d]. Therefore,
[w]hen a party raises affirmative defenses, a summary judgment should not be granted where there are issues of fact raised by the affirmative defenses which have not been effectively factually challenged and refuted. Thus, in order for a plaintiff to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses. In such instances, the burden is on the plaintiff, as the moving party, to demonstrate that the defendant could not prevail.
See E. Qualcom Corp. v. Global Commerce Ctr. Ass’n, Inc., 59 So. 3d 347, 352 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D886a] (citations and internal quotations omitted).
National’s ninth affirmative defense asserts:
Pursuant to Florida Statute 627.736(5) (a) the Plaintiff is not entitled to benefits since the services were not lawfully rendered. More specifically, in violation of Florida statute §456.053 the Plaintiff set a course of treatment for the Claimant that included a referral to Pain Management Group of S. FL, an entity in which the Plaintiff is an investor and/or has an investment interest.
(R. 733).
Appellant argues that the trial court erred by entering summary judgment in favor of National because Section 456.053 does not provide a defense to a claim for PIP benefits, as a matter of law. Appellant additionally argues that National does not have standing to assert an alleged violation of Section 456.053. Appellee maintains that the trial court properly entered summary judgment when it concluded that PIP benefits were not payable since Appellants had engaged in an unlawful referral scheme.
The PIP laws require that any medical care provider seeking PIP benefits to lawfully render the service for which payment is being sought. Florida Statutes section 627.736(5) enumerates this requirement, and provides in pertinent part as follows:
Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment
§ 627.736(5)(a), Fla. Stat. (emphasis added). The Florida legislature defines “lawfully” as “in substantial compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment.” See Florida Statutes section 627.732(11). Although Appellant argues there is no private cause of action under section 456.053, this Court does not need to reach whether section 456.053 is a valid cause of action. Appellee does not raise an affirmative defense under section 456.053, but rather argues that payment is not required under Florida Statutes section 627.736(5)(a) since the services were not lawfully rendered pursuant to Florida Statutes section 456.053.
The trial court concluded that Physicians Pain violated section 456.053, finding that Physicians Pain had self-referred the Insured to Pain Management. The trial court stated that the required disclosure for referral created a fiction and did not provide the Insured with a true choice of other physicians to consult. (01/30/09 Trans. at 17-18). This Court finds that the trial court erred by granting summary judgment. The trial court determined, as a matter of law, that Pain Management, Physicians Pain and Dr. Bonneu had violated Florida Statutes section 456.053(3)(k). (R. at 1362). The trial court concluded that the disclosure requirements of section 456.053 created a fictional choice for the patient because “in the real world,” a patient would not go to another provider when a referral entity is already in the same building. (01/30/09 Trans. at 17-18). This Court finds that the trial court improperly weighed conflicting evidence to conclude that a “cross-referral arrangement” was “put into place by Dr. Bonneau, Physicians Pain, and Pain Management,” which did not fall within any of the exclusions set forth in the statute and that, therefore, the disclosure did not cure the violation. (R. at 1364-1365). Upon a review of the record, this Court finds no evidence to support this factual conclusion. Furthermore, this Court finds that National has not proven its affirmative defense. See E. Qualcom Corp. v. Global Commerce Ctr. Ass’n, Inc., 59 So. 3d 347, 352 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D886a]. Therefore, the trial court’s order granting summary judgment in favor of National must be reversed.
Accordingly, it is hereby:
ORDERED and ADJUDGED that the trial court’s order granting summary judgment is REVERSED and REMANDED for further proceedings consistent with this opinion.
IT IS FURTHER ORDERED AND ADJUDGED that the Appellant’s Amended Motion for Appellate Attorney’s Fees is GRANTED as to entitlement. This matter is remanded to the trial court to determine the amount.
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