21 Fla. L. Weekly Supp. 805a
Online Reference: FLWSUPP 2108AIRPInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness, relatedness and necessity of treatment — Summary judgment — Affidavit of doctor licensed under separate chapter of statutes from treating physician is not competent evidence of reasonableness, relatedness and necessity of treatment — Summary judgment is precluded where there are genuine issues of material fact concerning credibility of insured and wife, who staged another automobile accident during course of treatment, and affirmative defense based on failure to comply with chiropractic record keeping requirements
AIRPORT ACCIDENT & INJURY a/a/o Rafael Garcia, Plaintiff, vs. TRAVELERS HOME & MARINE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 08-1757 CC 26. April 22, 2014. Lawrence D. King, Judge.
ORDER DENYING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT AS TO REASONABLENESS,RELATEDNESS AND NECESSITY
THIS CAUSE came before the Court on Tuesday, April 15, 2014, on Plaintiff’s Motion for Summary Judgment as to Reasonableness, Relatedness and Necessity, and the Court having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument of counsel; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, finds as follows:
First, the Court notes the law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977); Holl v. Talcott, 191 So. 2d 40 (Fla. 1966), cert. denied, 232 So. 2d 181 (Fla. 1969). A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Shaffran v. Holness, 93 So. 2d 94 (Fla. 1957). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it. Williams v. Lake City, 62 So. 2d 732 (Fla. 1953); Crovella v. Cochrane, 102 So. 2d 307 (Fla. 1st DCA 1958).
Next, the Court addresses Defendant’s argument that the Plaintiff has improperly submitted the affidavit of Jose Suarez, M.D., in an effort to support the reasonableness, relatedness, and necessity of the medical treatment rendered by Maria Quintero, D.C. to Rafael Garcia. The Court agrees that Dr. Suarez’s affidavit is not competent evidence of the reasonableness, relatedness and medical necessity of Dr. Quintero’s treatment because Dr. Suarez and Dr. Quintero are licensed under separate chapters of the Florida Statutes. Cf. Fla. Stat. 627.736(7)(a) (2013). As a result, Dr. Suarez’s testimony would likely not be admissible for this purpose, and accordingly cannot be used to support a summary judgment. Fla. R. Civ. P. 1.510(e).
The Court turns its attention to the chiropractic treatment, which appears to have been provided by Dr. Quintero. The Defendant has timely submitted the affidavit of Ryan Fisher, D.C., as well as an Amended Affidavit of Ryan Fisher, D.C., in an effort to contravene the Plaintiff’s prima facie case set forth in the Plaintiff’s affidavits. The Court has conducted a careful, detailed review of Dr. Fisher’s affidavits, in an effort to determine the validity of Plaintiff’s challenge to his Amended Affidavit under the discussion set forth in United Automobile Insurance Company v. Seffar, 37 So. 3d 379 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1302a] and more specifically, the decision of the Florida Supreme Court in Ellison v. Anderson, 74 So. 2d. 680 (Fla. 1954). The Court finds that Dr. Fisher’s Amended Affidavit does not “baldly repudiate” his prior affidavit so as to create a question of fact and, in fact, does not contradict the prior affidavit at all. All it does is expound further his opinions as expressed in his earlier affidavit. As a result, the Court finds that Dr. Fisher’s Amended Affidavit has sufficiently raised a disputed issue of material fact on numerous issues.
The Court points out that the deposition testimony contained in the record of Dr. Quintero, Rafael Garcia, and Karelia Alfaros all point to a disturbing conclusion: while Dr. Quintero was treating Mr. Garcia for the September 13, 2007 crash and may well not have been aware of the admittedly staged October 21, 2007 crash that took place in the middle of her treatment of Mr. Garcia, the fact remains the claimant and his wife have admitted to lying about the October 21, 2007 crash to both law enforcement and defense counsel. Where credibility issues impact the determination of material facts, summary judgment is not appropriate. See Kuczkir v. Martell, 480 So. 2d 700 (Fla. 4th DCA 1985).
The affidavit of Ryan Fisher, D.C., stated that the recordkeeping of the doctor, Maria Quintero, D.C. was inadequate due to the myriad of issues contained in the medical records, including, but not limited to the fact that the records diverged from the complaints of Mr. Garcia, a lack of extraordinary circumstance present to Mr. Garcia beyond the customary level of examination and management included within the CPT codes, the lack of any reference to the second crash involving the claimant, and the fact that the therapy notes were not legibly maintained such that an individual could not be identified as the licensed practitioner. The Eleventh Circuit, sitting in its appellate capacity, in United Auto Ins. Co. v. Atlantic Medical Center, Inc. a/a/o Manuel E. Floyd, 20 Fla. L. Weekly Supp. 1127b (Fla. 11th Cir. Aug. 29, 2013), that an insurer may question proper record keeping as an issue of fact. Id. It found that failing to comply with chiropractic record keeping requirements was a valid affirmative defense, and cited to Fla. Stat. §§ 627.732(11) and 460.413(m), and Fla. Admin. Code rule 64B2-17.0065(2)-(3) as its authority. Id.
Additionally, in State Farm Mut. Auto. Co. v. Gables Ins. Recovery, Inc., a/a/o Jose Seota, (11th Jud. Cir., Case No. 11-225 AP, Mar. 26, 2014) [21 Fla. L. Weekly Supp. 489a], the Court noted that in that case the trial court did not afford State Farm the opportunity to prove that Gables Recovery failed to lawfully comply with the medical record keeping requirements of rule 64B2-17.0065. As the Court noted, “lawfully” means “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.” Id. See also Fla. Stat. § 627.732(11) (2007).
Based on the foregoing reasons, the Court finds that there are genuine issues of material fact. Accordingly, it is hereby ORDERED and ADJUDGED that the Plaintiff’s Motion for Summary Judgment is DENIED.
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