21 Fla. L. Weekly Supp. 816a
Online Reference: FLWSUPP 2108BOWEInsurance — Personal injury protection — Coverage — Medical expenses — Summary judgment — Opposing affidavits filed by insurer do not preclude summary judgment in favor of medical provider on issues of reasonableness, relatedness and medical necessity of charges where affidavits are conclusory, and insurer failed to demonstrate that opinions are based upon sufficient facts or data or are product of reliable principles and methods and that affiants applied principles and methods reliably to facts of case — Use of 2008 Medicare fee schedule to reduce charges was improper where policy was issued in 2007 — Insufficient record keeping by provider is not lawful basis for nonpayment of PIP benefits
DOUGLAS RAPID REHABILITATION, INC., a/a/o Nicole Bowen, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO08-5454(70). May 1, 2014. Louis H. Schiff, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Gregory Blackburn, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AS TO REASONABLE, RELATED, AND MEDICAL NECESSITY
This matter was heard on April 14, 2014, on Plaintiff’s Motion for Final Summary Judgment as to Reasonable, Related, and Medical Necessity and the Court considered the arguments of counsel and reviewed the court file. The parties were well represented by prepared counsel. Andrew Weinstein appeared on behalf of the plaintiff and Gregory Blackburn appeared on behalf of the defendant. Findings and Ordered as follows:
FACTS:
1. This claim under this lawsuit arises out of a claim for unpaid personal injury protection benefits in the amount of $6,187.74, which happened more than 6 years ago.
2. Nicole Bowen was involved in an automobile accident on March 18, 2008.
3. In 2007, Ms. Bowen was issued an insurance policy by the Defendant, “United Automobile”, and this policy of insurance was in effect on the date of loss.
4. United Automobile no-fault coverage is for $10,000.00, subject to a deductible of $1,000.00.
5. Bowen sustained injuries in this automobile accident and she sought medical treatment at the Plaintiff’s chiropractic facility from April 15, 2008 through July 14, 2008.
6. Plaintiff timely submitted its bills for these dates of service to the Defendant, but Defendant chose to ignore them and paid nothing.
7. On October 22, 2008, in response to Plaintiff’s demand letter, the Defendant chose to make a reduced payment to Plaintiff for dates of service 04/15/2008 to 05/23/2008 based on the allowable amount pursuant to the 2008 Medicare Fee Schedule.
8. This reduced payment was not accepted by the Plaintiff and Plaintiff filed this lawsuit on or about December 8, 2008.
9. Defendant filed its Answer and Affirmative Defenses on or about April 01, 2010.
10. On April 30, 2010, Plaintiff filed its notice for jury trial.
11. On May 14, 2013, the Court entered its notice of trial conference indicating that a trial would take place within 60 days of the pretrial conference, which was held on June 7, 2013.
12. On July 2, 2013, Plaintiff filed its Motion for Final Summary Judgment, which was initially set to be heard on October 14, 2013.
13. During the time this case has been pending, the Court granted multiple defense continuances to allow Defendant additional time to engage in additional discovery and take additional depositions.
14. Multiple hearings were also held primarily on Defendant’s requests pertaining to discovery responses.
15. On January 31, 2014, this Court entered a trial order setting the trial date for April 1, 2014, which was later moved to May 6, 2014.
16. On April 14, 2014, more than 280 days after Plaintiff served its Motion for Summary Judgment, the Court held the hearing on it.
17. Despite the length of time this case has been in litigation and the numerous opportunities to conduct additional discovery allowed by the Court, the Defendant argued discovery had not been completed even though Defendant failed to act diligently in obtaining all necessary discovery over the more than 5 years of litigation and the 286 days that Defendant was aware of Plaintiff’s motion for final summary judgment.1
ANALYSIS AND CONCLUSION
18. 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.
19. In support of its Motion for Final Summary Judgment, the Plaintiff relied on the sworn affidavit from Dr. Michael Douglas, D.C., the owner of Douglas Rapid Rehabilitation, in which he testified under oath to what was done as far as treating Bowen; that the treatment rendered to Bowen was reasonable, necessary, and related to the automobile accident of March 18, 2008, and that each of charges for the CPT codes at issue in this case were reasonable, usual and customary.
20. The Court finds that the affidavit filed in support of Plaintiff’s Motion Final Summary Judgment is legally 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.
21. In Florida 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.1
22. In this case, the Defendant relied solely on the sworn affidavits from Dr. Bradley Simon, D.C. and Marcia Lay. After carefully reviewing the evidence, it is this Court’s judgment that these affidavits do not create a genuine issue of material fact sufficient to defeat the Plaintiff’s motion.
A Party is Not Permitted to Take Inconsistent Positions to Defeat a Summary Judgment Motion
23. A litigant when confronted with an adverse motion for summary judgment may not take an inconsistent position or otherwise contradict or disavow prior sworn testimony with new and starkly different sworn affidavit testimony, solely to avoid summary judgment.2
24. The Florida Supreme Court in Ellison held “[W]hen met by a Motion for Summary Judgment [a litigant] should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy.”
25. In Ondo v. F. Gary Gieseke, P.A.,3 the Fourth District Court of Appeal reiterated this: “Even assuming appellant’s affidavit created a material issue of fact because it contradicts her answers to the interrogatories, it is well established that a litigant when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony. Ellison v. Anderson, 74 So. 2d 680 (Fla.1954); Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981); Willage v. Law Offices of Wallace and Breslow, P.A., 415 So.2d 767 (Fla. 3d DCA 1982); Cary v. Keene Corp., 472 So. 2d 851 (Fla. 1st DCA), rev. denied, 480 So.2d 1294 (1985).”
26. The Fourth District Court of Appeal recognized that in order for a party to avail itself of the limited exception to this rule, the party would need to have a “credible explanation by the affiant as to the reason for the discrepancy between his earlier and later opinions.”4
27. The Court reasoned, “[a]n unsubstantiated assertion is not sufficient to overcome the effect of the prior testimony, however, and the explanation must appear either in the affidavit itself or, viewed as a whole, the record must support the explanation.”5
28. To the extent the affidavit of Dr. Simon is inconsistent with his opinions as set forth in his peer review or the position the Defendant has maintained since the start of this action, the Court will not allow such inconsistencies under the facts and circumstances of this case to create a genuine issue of material fact.
29. Also, to the extent the affidavit of Marcia Lay is inconsistent with the position the Defendant has taken since the start of this case, the Court will not allow such inconsistencies under the facts and circumstances of this case to create a genuine issue of material fact.
Reasonableness of Charges
30. At issue when dealing with the element of reasonableness in a PIP case, is whether the charge of medical provider is reasonable, not whether the Defendant paid a reasonable amount.6
31. There is not a single amount for any given CPT code that is “reasonable,” but rather a range and if a Plaintiff’s charge falls within that range the charge is considered reasonable.
32. The fact Medicare, Medicaid, or others pays less or allows less than the amount that Plaintiff charges does not create a genuine issue of material fact7 and these fee schedules standing alone are also insufficient to create a genuine issue of material fact that the Plaintiff’s charge was unreasonable.8
33. In determining whether Plaintiff’s charges were reasonable in this case, Defendant relied on Dr. Bradley Simon, D.C. who on September 7, 2008 authored a peer review and wrote the “fees billed should be based on Medicare part B and Florida Workers’ Compensation Health Care Provider Reimbursement Manual, 2007 Edition”
34. However, on October 22, 2008, when Defendant issued payment, the Defendant calculated the payment amount based on the 2008 Medicare Fee Schedule.
35. On April 10, 2014, almost 2,000 days after the Defendant issued the reduced payment and two business days prior to the hearing on Plaintiff’s motion, the Defendant filed the affidavit of the litigation adjuster, Marcia Lay.
36. Lay’s affidavit set forth, for the first time, how much Plaintiff charged for each CPT code at issue in this case and then randomly and without reasoning picked one or two providers for each CPT code who billed less than Plaintiff did.
37. In paragraph 34, Lay states, “If Plaintiff’s charges were reasonable, everyone in the community would charge this amount for these particular CPT codes and none of the providers would accept less than that amount because a lesser amount than that would not be reasonable. Therefore, in light of the fact provider’s bill less, the pricing of the bills is not reasonable.”
38. Up until two business days prior to the hearing at issue, the Defendant took the position that it relied solely upon the peer review authored by Dr. Simon when it made a determination as to the reasonableness of Plaintiff’s charges.
39. For example, on or about January 12, 2009, Plaintiff served interrogatories on the Defendant. Interrogatory #5 asked, “Does the Defendant contend that the Plaintiff has submitted medical bills for payment which arose out of Patient’s accident of, March 18, 2008, which were unreasonable in amount? If so, please state each and every fact supporting the Defendant’s claim that said medical bills were unreasonable in amount.”
40. In Defendant’s verified answer to interrogatory #5, Defendant indicated it “states that Plaintiff has submitted medical bills which are unreasonable in amount. Defendant relies upon the peer review conducted by Dr. Bradley Simon wherein he opines that not all charges are reasonable, related and/or necessary. Please refer to Defendant’s explanation of benefits letter dated 10/22/2008, a copy of which is attached hereto.”
41. Additionally, Lay testified in her August 13, 2009 deposition that the reason that Defendant was denying this claim was based on a peer review.9 In addition, she testified the reduction was based on Dr. Simon’s report10 and she used the 2008 fee schedule because “that is the Medicare payment allowed that we were using for 2008. According to the 2008 statute, it changes the payment referred to the Medicare Fee Schedule, so this is what was used.”11 Finally she testified other than the peer review, there were no other defenses that the Defendant would be relying upon in this case.12
42. This Court understands the amendments to the Florida expert opinion law and the fact that a party faces a greater burden in presenting an 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 (1) “based upon sufficient facts or data”; (2) “the product of reliable principles and methods”; and (3) “the witness has applied the principles and methods reliably to the facts of the case.”
43. As to the issue of the reasonableness of Plaintiff’s charges, this Court finds the affidavits the Defendant relies upon are self-serving and conclusory.
44. This Court also finds the Defendant failed to demonstrate that either of the opinions set forth in the affidavits were “based upon sufficient facts or data”, “the product of reliable principles and methods”, or that either of the witnesses has applied the principles and methods reliably to the facts of the case.”
45. The Court notes these affidavits rely exclusively on undisclosed “underlying data,” which the Defendant chose not to produce or make available for inspection, and data that was facially unreliable.13
46. Perhaps the biggest flaw to Defendant’s reliance on the 2008 Medicare fee schedule is the fact the policy of insurance at issue in this case was issued in 2007. The “Statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.”14 As such, the use by the Defendant of the 2008 Medicare fee schedule was improper.15
47. For the reasons stated above, Defendant has not come forward with any admissible evidence refuting Plaintiff’s evidence that its charges at issue in this case were “reasonable”.
48. The Court finds that the Defendant failed to either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence that creates a direct conflict with the proponent’s evidence.
Relatedness and Medical Necessity of Dates of Service Prior to May 23, 2008
49. The purpose of requests for admissions are to narrow the issues of a case as framed in the pleadings. In addition, rule 1.370(b) of the Florida Rules of Civil Procedure states, in pertinent part, that “Any matter admitted under this rule is conclusively established . . .”
50. On January 28, 2009, Defendant filed its responses to Plaintiff’s request for admissions.
51. In its response to request for admission #18, Defendant admitted, “All benefits previously paid by Defendant on behalf of Patient have been for ‘related’ medical or rehabilitative or remedial treatment or services.”
52. Also in its response to request for admission #19, the Defendant admitted, “All benefits previously paid by Defendant on behalf of Patient have been for ‘necessary’ medical or rehabilitative or remedial treatment or services.”
53. In Defendant’s verified response to Plaintiff’s interrogatory #12, Defendant stated, “Defendant has made payments pursuant to Florida Statute and Defendant’s policy of insurance for all reasonable expenses for necessary medical, surgical, x-ray, dental and rehabilitative services related to the subject accident. Please refer to Defendant’s explanation of benefits letter dated 10/22/2008.”
54. In Defendant’s verified response to Plaintiff’s interrogatory #8, Defendant stated, “Defendant paid benefits for DOS: 4/15/08 through 5/23/08.”
55. Since Defendant admitted the treatment for dates of service 4/15/08 through 5/23/08 were related and medically necessary, this is not an issue before this Court.
56. The Court therefore concludes that all treatment rendered from April 15, 2008 through May 23, 2008 was related and medically necessary.
Relatedness and Medical Necessity of Dates of Service After May 23, 2008
57. In an attempt to refute the affidavit of Dr. Douglas, Defendant relies solely upon the affidavit of Dr. Simon to demonstrate the dates of service after May 23, 2008 were not related or medically necessary.
58. Based on the language of the affidavit of Dr. Simon, this Court finds this affidavit is conclusory and self-serving and is not sufficient to defeat summary judgment since it fails to create a “genuine issue” of material fact.
59. In addition, this Court finds the Defendant failed to demonstrate to this Court that Dr. Simon’s opinion as set forth in the affidavit was “based upon sufficient facts or data”, “the product of reliable principles and methods”, or that either Dr. Simon has applied the principles and methods reliably to the facts of the case.”
60. Furthermore, the Court notes this affidavit relies exclusively on undisclosed “underlying data,” which the Defendant chose not to produce or make available for inspection, and data that was facially unreliable.16
61. Defendant also failed to attach sworn or certified copies of all papers or parts thereof referred to in Dr. Simon’s affidavit in violation of rule 1.510(e) of the Florida Rules of Civil Procedure.
62. Finally, to the extent Dr. Simon’s opinions pertaining to dates of service after May 23, 2008 are based on the notion of insufficient record keeping on the part of Dr. Douglas, this Court does not recognize that as a lawful basis for nonpayment of PIP benefits.17
63. As such, Defendant did not either present countervailing expert testimony, severely impeach Dr. Douglas’s affidavit, or present other legally sufficient evidence which created a direct conflict with Dr. Douglas’s affidavit; therefore, the Court finds all treatment rendered after May 23, 2008 was related and medically necessary.
64. Based on the above findings, the Court hereby grants Plaintiff’s Motion for Final Summary Judgment as to Reasonable, Related, and Medical Necessity.
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1See e.g., Congress Park Office Condos II, LLC v. First-Citizen Bank & Trust Co., 105 So. 3d 602 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D145a] and the cases cited therein.
1Rose v. Dwin, 762 So. 2d 532, 533 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1083c] (citing Jarrell).
2See Ellison v. Anderson, 74 So. 2d 680 (Fla.1954); Ondo v. F. Gary Gieseke, P.A., 697 So. 2d 921 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1770a], rev. denied, 707 So.2d 1126 (1998); Arnold v. Dollar General Corp., 632 So. 2d 1144 (Fla. 5th DCA 1994).
3697 So. 2d 921, 923 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1770a].
4Ondo v. F. Gary Gieseke, P.A. citing Croft v. York, 244 So. 2d 161, 165 (Fla. 1st DCA), cert. denied, 246 So.2d 787 (Fla.1971).
5Ondo v. F. Gary Gieseke, P.A. citing Goodman; Borders v. Liberty Apartment Corp., 407 So.2d 232 (Fla. 3d DCA 1981), rev. denied, 417 So.2d 330 (1982).
6See Windsor Imaging a/a/o Roneil Morris v. State Farm Mutual 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.”).
7Hallandale Open MRI (a/a/o Jhana Hyman) v. State Farm Mut. Auto. Ins. Co., Case No.: 11-013897CONO71 (Fla. Broward Cty. Ct. 2014); Hallandale Open MRI, LLC (a/a/o Tramaine Morgan) v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 683a (Fla. Broward Cty. Ct. 2013).
8See e.g., Plantation Open MRI, LLC (a/a/o Fernando Venegas) v. State Farm Mut. Auto. Ins. Co., Case No.: 12-1617 COCE 53 (Fla. Broward Cty. Ct. 2013) [21 Fla. L. Weekly Supp. 589a]; United Auto. Ins. Co. v. Health Diagnostics of Miami, LLC, d/b/a Stand-up MRI of Miami (a/a/o Yolanda Vasques), Case No.: 12-8641 CACE (Fla. 17th Jud. Cir. (Appellate) 2013) [21 Fla. L. Weekly Supp. 401e].
9Deposition Transcript page 9, lines 2-6.
10Deposition Transcript page 31, lines 3-5.
11Deposition Transcript page 32, lines 4-9.
12Deposition Transcript page 37, lines 16-20.
13See Fla. Stat. §§90.702(1) (2013), 90.956 (2013); Rule 1.510(e).
14Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996) [21 Fla. L. Weekly S102c]; Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873 (Fla. 2010) [35 Fla. L. Weekly S81a].
15See e.g., Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873 (Fla. 2010) [35 Fla. L. Weekly S81a]; Fidel S. Goldson, D.C., P.A. (a/a/o Dian Craig) v. State Farm Fire and Casualty Co., 17 Fla. L. Weekly Supp. 1261a (Fla. Broward Cty. Ct. 2010); Ronald J. Trapana, M.D., P.A. (a/a/o Anthony Santoro) v. Geico Indemnity Co., 17 Fla. L. Weekly Supp. 592b (Fla. Broward Cty. Ct. 2010); Hollywood Injury Rehab Center (a/a/o Yvette Lee) v. State Farm Fire and Casualty Co., 18 Fla. L. Weekly Supp. 213a (Fla. 11th Jud. Cir. (Appellate) 2010); DCI MRI, Inc. v. Geico Indemnity Co., 79 So. 3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e].
16See Fla. Stat. §§90.702(1) (2013), 90.956 (2013); Rule 1.510(e).
17See e.g., State Farm Fire and Casualty Co. v. Central Magnetic Imaging Open MRI of Plantation, Ltd (a/a/o Evelyn Deshommes), 21 Fla. L. Weekly Supp. 239a (Fla. 17th Jud. Cir. (Appellate) 2013) (agreeing with the fact that “Other circuit courts, in their appellate capacity, have noted that a medical expert opinion asserting that a provider’s documentation is deficient without offering anything more does not create an issue of material fact to avoid summary judgment.”); Sevila Pressley Weston v. United Auto. Ins. Co., FLWSUPP 2104WEST (Fla. 11th Jud. Cir. (Appellate) 2013) [21 Fla. L. Weekly Supp. 306b] (explaining that “[i]n order to refute relatedness, United Auto had to present actual and/or factual evidence which would purport to more or less show that the injuries and subsequent medical treatment did not arise out of the subject accident. Alleged deficient recordkeeping cannot satisfy this requirement . . .”); Michael J. Delesparra, D.C., P.A. (a/a/o Joseph Walkens) v. MGA Ins. Co., Inc., 19 Fla. L. Weekly Supp. 854c (Fla. Broward Cty. Ct. 2012) (Judge Lee struck Defendant’s affirmative defense and reasoned that the failure to maintain adequate medical records is not a defense to payment in a PIP case.); Nob Hill Chiropractic (a/a/o Kenrick Grant) v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 195a (Fla. Broward Cty. Ct. 2013) (Judge Cowart granted Plaintiff’s Motion in Limine and reasoned that “since the PIP statute does not specifically provide that inadequate record keeping is a lawful basis for non-payment, it may not form a lawful basis as to non-payment of the medical charges.”); South Florida Pain & Rehabilitation, Inc. (a/a/o Kirt Godfrey) v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 981b (Fla. Broward Cty. Ct. 2009) (Judge Trachman granted Plaintiff’s motion for summary judgment as to RRN and reasoned that “any opinion regarding the adequacy of the records is not germane to the issue of RRN. An alleged failure to maintain adequate records is not a legal basis to support the finding that the medical services were not RRN.”); Dr. Kim Reddick, DC PA (a/a/o Patricia Camblin) v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 487b (Fla. Volusia Cty. Ct. 2012) (Judge Feigenbaum reasoned that an expert affidavit addressing minimal record keeping standards and administrative violations are not relevant to the issue of whether the treatment provided is reasonable, related, or medically necessary.); Right Choice Medical & Rehab. Corp. (a/a/o Martha Alvarez) v. State Farm Fire and Casualty Co., 21 Fla. L. Weekly Supp. 181a (Fla. Miami-Dade Cty. Ct. 2011) (Judge Pando granted final judgment in favor of Plaintiff and followed Judge Trachman’s reasoning that “any opinion regarding the adequacy of the records is not germane to the issue of RRN. An alleged failure to maintain adequate records is not a legal basis to support the finding that the medical services were not RRN.”); Ali v. McCarthy, 17 Fla. L. Weekly Supp. 661a (Fla. Seminole Cty. Ct. 2010) (Judge Simmons granted Plaintiff’s motion for protective order and reasoned that the Defendant does not have standing to assert any violations of any administrative code, regulatory statute, licensing requirements or medical record standards and that such an inquiry into any of this “does not go to the efficacy of treatment, causal connection or reasonableness of the charge and is therefore not reasonably calculated to lead to the discovery of admissible evidence.”).
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