21 Fla. L. Weekly Supp. 370a
Online Reference: FLWSUPP 2104OROZInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Insurer failed to create genuine issue of material fact regarding reasonableness of medical provider’s charges where insurer’s expert, who opined as to recommended amounts for charges, relied exclusively on several undisclosed databases and failed to state that provider’s charges were unreasonable — Insurer failed to create genuine issue of material fact as to relatedness and medical necessity of charges where opinion of insurer’s expert that charges were not related or necessary was based on alleged insufficient record keeping by provider, which was not raised as affirmative defense, and where expert’s affidavit was self-serving and conclusory
CHAMPION CHIROPRACTIC & REHAB, INC., a/a/o Fabio Orozco-Murillo, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE07-010815(55). November 12, 2013. Sharon L. Zeller, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Rashad H. El-Amin, Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AS TO REASONABLE,RELATED & NECESSARY
THIS CAUSE having come on to be heard on October 01, 2013, on Plaintiff’s Motion for Summary Judgment as to Reasonable, Related & Necessary and the Court having heard argument of counsel, having reviewed the Court file, and being otherwise advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED as follows:BACKGROUND:
1. This is a lawsuit for unpaid personal injury protection (“PIP”) benefits in the amount of $2,940.00.
2. Fabio Orozco-Murillo was involved in an automobile accident on December 07, 2005.
3. Fabio Orozco-Murillo was covered under a policy of insurance issued by the Defendant, United Automobile Insurance Company, and this policy of insurance was in full force and effect on the date of loss.
4. As a result of the injuries that Fabio Orozco-Murillo sustained in this automobile accident, he sought treatment at the Plaintiff’s chiropractic facility from January 12, 2006 through April 04, 2006.
5. Plaintiff timely submitted its bills for these dates of service to the Defendant, but Defendant chose not to pay 80% of the amount charged.
6. On May 22, 2006 — over 1 month after Fabio Orozco-Murillo concluded treatment with the Plaintiff — Defendant obtained a peer review report from Dr. Marvin Merrit, D.C., who opined that chiropractic treatment beyond March 14, 2006 would not be reasonable, related, or medically necessary.
7. On or about March 22, 2007, Plaintiff filed this lawsuit.ANALYSIS AND CONCLUSION
1. The law pertaining to summary judgment is well settled in Florida1: First, summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.2 Second, the burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.3 Third, the trial court must draw every possible inference in favor of the party against whom summary judgment is sought.4 Fourth, if the evidence raises any issues of material fact, or if it is conflicting, or if it will permit different reasonable inferences, or if it tends to prove the issues, summary judgment cannot be granted .5 Fifth, once the moving party meets its burden of showing conclusively the complete absence of any genuine issue of material fact, the burden shifts to the non-moving party.6
2. Under Fla. Stat. § 627.736(1)(a), the insurer must provide medical benefits to the insured so long as such benefits are for reasonable, related, and necessary remedial treatment.
3. In support of its Motion for Summary Judgment, the Plaintiff relied on the sworn affidavit from Dr. Damian Fronzaglia, D.C., in which he testified under oath to what he did as far as treating Fabio Orozco-Murillo; that the treatment rendered to Fabio Orozco-Murillo was reasonable, necessary, and related to the automobile accident of December 07, 2005; and that each of charges for the CPT codes at issue in this case were reasonable, usual and customary.
4. The Court finds that the affidavit filed in support of Plaintiff’s Motion for Summary Judgment is sufficient for Plaintiff to meet its burden of proof thereby shifting the burden to Defendant to demonstrate the existence of a genuine issue of material fact.
5. It is well-settled law in Florida that the party seeking to contest an expert opinion must either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence.7
6. In this case, the only record evidence that Defendant presented for this Court to consider in opposition to Plaintiff’s motion was a sworn affidavit from Dr. Marvin Merrit, D.C.Dates of Service Prior to March 14, 2006
7. As for the affidavit of Dr. Marvin Merrit, he testified under oath that “In reviewing the provider’s medical records, taking into consideration the provider’s diagnosis, and this reviewer’s experience in treating patients with similar conditions and complaints, it is this reviewer’s opinion that chiropractic treatment beyond 3/14/06 would not be reasonable, related or medically necessary. It is this reviewer’s recommendation to deny payment for chiropractic treatment beyond 3/14/06.”
8. In addition, Dr. Merrit testified at deposition that he felt that the chiropractic treatment up to 3/14/06 was reasonable, related, and medically necessary.8
9. Based on the summary judgment evidence presented by both parties, it is undisputed that the services provided by Plaintiff from January 12, 2006 through March 14, 2006, were related and medically necessary.Reasonableness of Charges
10. With respect to the reasonableness of the amounts charged in this case, Dr. Merrit included a table in his affidavit indicating the charged amount and a separate column indicating his “recommended” amount. Dr. Merrit states that his “review is based upon the Relative Value Units (RVU) as reported in several data bases for the Fort Lauderdale, Florida region.”
11. However, Dr. Merrit’s affidavit fails to specifically identify the databases that he relies upon and his report is conclusory in that Dr. Merrit fails to provide facts to support his opinions regarding the prices charged by the Plaintiff.9
12. Dr. Merrit’s testimony on pages 29-30 of the deposition transcript is as follows:
Q. Now, in this case, that’s the only basis that you used to reduce the charges, the Chiro Code Book. Right?
A. Yes.
Q. Have you ever worked for Chiro Code?
A. No.
Q. Do you have any first hand knowledge of how Chiro Code arrives at these prices?
A. Only from the information contained.
Q. That’s just what you read?
A. I haven’t interviewed them, worked for them. It’s just like any other document.
Q. Do you know what their mistake rate is?
A. No.
Q. Do you know how many scrub their data for errors?
A. No.
* * *
Q. Again, just to clarify for finality, the recommended charge for the CPT CODE isn’t based upon your own personal opinion. It is based upon what you read from the Chiro Code Book?
A. Based upon data from the Chiro Code Book. Yes.
13. As Judge Lee illustrated in Pan Am Diagnostic Services, Inc. (a/a/o Demetrius A. Sears) v. United Auto. Ins. Co.,10 under Rule 1.510(e), a court may only consider evidence at a summary judgment hearing that would be admissible in evidence. As such, since under the facts and circumstances of this case, Dr. Merrit would be unable to testify as an expert at trial pertaining to the issue of reasonableness, his proffered expert opinion in this regard cannot be considered by this court at a summary judgment hearing.
14. Also pertaining to the issue of the reasonableness of the charges in this case, Dr. Merrit’s affidavit failed to make a specific finding that the charges in this case were unreasonable. In his chart, Dr. Merrit makes a recommendation of what he believes should be reimbursed, but he fails to state that the amount charged by Plaintiff is unreasonable. Without a specific finding that the charges were unreasonable, Defendant has no evidence to contradict Dr. Fronzaglia’s affidavit specifically stating that each amount charged in this case was reasonable.
15. The issue as it relates to the element of the reasonableness of charges in PIP cases is whether the Plaintiff’s charged amount is reasonable, not whether some other amount may also be reasonable.11Dates of Service After March 14, 2006
16. As for all other dates of service that do not fall within this range or for which Dr. Merrit opines were not reasonable, related or medically necessary, the Court finds that Dr. Merrit’s opinions seem to be based on the notion of alleged insufficient record keeping on the part of Dr. Fronzaglia, which was not raised as an affirmative defense in this case and is therefore not an issue for the Court to consider.
17. In addition, the Court finds that Dr. Merrit’s affidavit was self-serving and conclusory and, based on the well-settled law in Florida,12 is not sufficient in support of or in opposition to a motion for summary judgment.
18. Moreover, Dr. Merrit’s affidavit is insufficient because it does nothing more than paste the entire content of Dr. Merrit’s inadmissible13 peer review report verbatim into the body of the Affidavit.
19. In that same regard, none of the attached exhibits or documents filed in support of Defendant’s motion are sworn to or certified. Any writing offered into evidence should be accompanied by competent proof showing its genuineness, pursuant to Fla. Stat. § 90.901.14 Rule 1.510(e) of the Florida Rules of Civil Procedure by its very language excludes from consideration on a motion for summary judgment, any document that is not one of the enumerated documents or is not a certified attachment to a proper affidavit.15 All of the exhibits and documents attached to the alleged Affidavit of Dr. Marvin Merrit, D.C., filed by the Defendant, are not sworn to or certified, and therefore cannot be considered by this court.
20. The Court notes that although Defendant’s responses to Plaintiff’s request for admissions admitted that Defendant had no medical report with regard to any medical treatment for which benefits are sought by Plaintiff specifically stating that the treatment was not reasonable, not related, or not medically necessary, this Court did not rely on this in rendering its decision.
21. Regarding dates of service from 01/12/2006 through 03/14/2006 the Court finds, based on the undisputed evidence presented by both parties, that no genuine issue of material fact exists as to the relatedness and medical necessity for those dates of service and judgment is hereby entered in favor of the Plaintiff.
22. Regarding the reasonableness of the amounts charged by the Plaintiff for treatment rendered on dates of service from 01/12/2006 through 04/04/2006, the Court finds that, for the reasons set forth in detail above, no genuine issue of material fact exists as to the reasonableness of the amounts charged for those dates of service and judgment is hereby entered in favor of the Plaintiff.
23. Regarding dates of service from 03/15/2006 through 04/04/2006, the Court finds that, for the reasons set forth in detail above, Defendant has failed to meet its burden and therefore no genuine issue of material fact exists as to the relatedness and medical necessity for those dates of service and judgment is hereby entered in favor of the Plaintiff.
__________________
1See Albelo v. S. Bell, 682 So. 2d 1126 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2165a].
2Fla. R. Civ. P. 1.510(c); See Volusia Cnty v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a].
3See Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966).
4Moore v. Morris, 475 So. 2d 666 (Fla. 1985).
5McDonald v. Florida Dep’t Transp., 655 So. 2d 1164 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1141a].
6See Holl, 191 So. 2d at 43-44.
7Rose v. Dwin, 762 So. 2d 532, 533 (Fla. 4th DCA 2000) (citing Jarrell) [25 Fla. L. Weekly D1083c].
8See Deposition Transcript of Dr. Marvin Merrit, page 15, lines 21-23.
9See Ocean Health Inc. v. U.S. Sec. Ins. Co., 13 Fla. L. Weekly Supp. 378b (Broward Cty. Ct. Dec. 19, 2005).
1020 Fla. L. Weekly Supp. 937a (Fla. Broward Cty. Ct. 2013). See also, State Farm Fire & Cas. Co. v. Champion Chiropractic & Rehab, Inc., 20 Fla. L. Weekly Supp. 482a (Fla. 17th Cir. Ct. 2013) (Appellate Capacity).
11See Windsor Imaging a/a/o Roneil Morris v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 215b (Broward Cty. Ct. 2011) (Judge Lee explained that “the issue before this Court is not whether State Farm paid a reasonable amount, rather whether the amount charged for the service at issue was reasonable.”).
12See Progressive Express Ins. Co. v. Camillo, 80 So. 3d 394 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D344a] (reasoning that “conclusory self-serving statements which are framed in terms only of conclusions of law are not sufficient to either raise a genuine issue of material fact or prove the non-existence of a genuine issue of material fact.”); Goheagan v. Am. Vehicle Ins. Co., 4D10-3781 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2774a] (reasoning that “[f]actual conclusions are also insufficient.”); Heitmeyer v. Sasser, 664 So. 2d 358 (Fla. 4th DCA 1995) [21 Fla. L. Weekly D39a] (conclusory affidavit not sufficient for summary judgment purposes); Seinfeld v. Commercial Bank & Trust Co., 405 So. 2d 1039 (Fla. 3d DCA 1981) (recognizing that general statements in an affidavit which are framed in terms only of conclusions of law do not satisfy a movant’s burden of proving the nonexistence of a genuine material fact issue); Hurricane Boats. Inc. v. Certified Indus. Fabricators. Inc., 246 So. 2d 174 (Fla. 3d DCA 1971) (affidavit in support of summary judgment may not be based on factual conclusions or conclusions of law); Sherman v. Weintraub, 132 So. 2d 421 (Fla. 3d DCA 1961) (affidavit of defendant, denying liability as a conclusion of law, was insufficient to raise genuine issue as to material fact); Pino v. Lopez, 361 So.2d 192 (Fla. 3d DCA), cert. denied, 365 So.2d 714 (Fla.1978) (plaintiff’s affidavit in opposition to motion for summary judgment was insufficient as a matter of law because it alleged conclusions of law without supporting facts).
13See McElroy v. Perry, 753 So. 2d 121 (Fla. 2nd DCA 2000) [25 Fla. L. Weekly D111a] (reasoning that “An IME report prepared for the purpose of litigation, lacks the trustworthiness that business records are presumed to have, and therefore, is not admissible under the Business Records Exception.” See also Physician’s First Med. Inc. v. Granada Ins. Co., 12 Fla. L. Weekly Supp. 776a (11th Cir. Ct., May 9, 2005) (holding that the Affidavit of the insurer’s IME physician and the attached peer review were not competent evidence that gave rise to a genuine issue of material fact because the “affidavit fails to state a proper foundation for the admissibility of his report under an exception to the hearsay rule. It only purports to authenticate his report, which is a document created for the sole purpose of litigation, thus is inadmissible as a business document pursuant to 90.803(6).”
14Bifulco v. State Farm Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1325a].
15Id. See also Nichols v. Preiser, 849 So. 2d 478 (Fla. 2nd DCA 2003) [28 Fla. L. Weekly D1671a] (holding that simply attaching documents that are not sworn to or certified to a motion for summary judgment does not satisfy the procedural requirements of Rule 1.510(e)).
* * *
