21 Fla. L. Weekly Supp. 878a
Online Reference: FLWSUPP 2109EUGEInsurance — Personal injury protection — Coverage — Medical expenses — Verdict finding that none of services provided to insured were medically necessary was contrary to manifest weight of evidence where insurer failed to present any evidence to contradict provider’s testimony that treatment provided to insured was medically necessary — Testimony of insurer’s expert that all services rendered were not “reimbursable” does not address issue of medical necessity — Error to deny motion for directed verdict
GARRET WEINSTEIN, D.C., P.A. a/a/o Patricia Eugene, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 09-013999 CACE (05). L.T. Case No. 06-13068 COCE (52). April 4, 2012. Counsel: Joseph R. Dawson, Joseph R. Dawson, P.A., Fort Lauderdale, for Appellant. Michael Neimand, Office of General Counsel, Miami, for Appellee.OPINION
(EADE, Judge.) THIS CAUSE came before the court, sitting in its appellate capacity, upon appeal by Appellant, Garret Weinstein, D.C., P.A. a/a/o Patricia Eugene of the trial court’s denial of Appellant’s Motion for Directed Verdict, Renewed Motion for Directed Verdict, or in the alternative, Motion for New Trial. The court, having considered the briefs filed by the parties, oral argument, and being duly advised in premises and law, finds and decides as follows:
On July 8, 2005, Patricia Eugene (“Ms. Eugene”) was involved in a motor vehicle accident and sustained injuries. Thereafter, she was treated by Appellant, Garret Weinstein, D.C., P.A. (“Dr. Weinstein”), and assigned her rights to Personal Injury Protection (“PIP”) benefits to Appellant. (R. at 2). On August 9, 2006, Appellant filed a complaint for breach of contract for PIP benefits. (R. 1 – 11). On September 28, 2006, the Appellee, United Automobile Insurance Company (“United”), filed its answer and affirmative defenses denying that the treatment was reasonable, related or medically necessary. (R. 12 – 15). The sole issue at trial was whether the treatment rendered by Dr. Weinsten to Ms. Eugene was reasonable, related or necessary. (R. at 279). On October 28, 2008, following a two day trial on this issue, the jury returned a verdict in favor of the Appellee finding that none of the medical services provided to Ms. Eugene at Appellant’s office were medically necessary. (R. at 383). On November 5, 2008, Plaintiff filed its Motion for directed verdict, renewed motion for directed verdict, and motion for new trial. (R. at 394 – 407). On February 6, 2009, the trial court denied Plaintiff’s motion. (R. at. 409). Appellant filed a timely appeal.
On December 13, 2010, this Court entered an Opinion affirming the trial court’s rulings. On January 5, 2011, Appellant moved for rehearing arguing that this Court’s Opinion reflected a significant misapprehension of material facts and that this Court had overlooked portions of the record. On January 11, 2011, this Court granted Appellant’s motion for rehearing and granted oral argument to allow an opportunity to argue why the record does not support this Court’s ruling. On February 14, 2012, this Court heard oral argument. On February 16, 2012, the mandate entered on January 23, 2011 was vacated.1
Appellant argues that the trial court erred in denying Plaintiff’s motion for a directed verdict and later a new trial as the verdict was contrary to the manifest weight of the evidence. First, Appellant argues that the record contained evidence that Ms. Eugene had sustained injuries from a motor vehicle accident which rendered the chiropractic treatment and physiotherapy modalities medically necessary. Second, Appellant argues that the trial court erred in denying Appellant’s Supplemental Motion to Strike Defendant’s Expert Witness, Dr. Don Morris, as the only evidence offered by that expert, which was limited to an attack on the adequacy of the medical records and the treating doctor’s alleged failure to inquire further regarding elements of the Ms. Eugene’s past medical history for hyperthyroidism, did not form a legal basis to justify non-payment of the medical charges. Finally, the Appellant argues that the trial court allowed Appellee to improperly attack the credibility of Dr. Weinstein on collateral matters.
The standard of review from a trial court’s denial of a motion for directed verdict is de novo. See Drew v. Tenet St. Mary’s, Inc., 46 So. 3d 1165, 1166 – 1167 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2454a]. “A motion for directed verdict should be granted only when the evidence viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ as to the existence of a material fact and that the movant is entitled to judgment as a matter of law.” Id. at 1167. Thus, “an appellate court must affirm the denial of a motion for directed verdict if any reasonable view of the evidence could sustain a verdict in favor of the non-moving party.” Id. (citing Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So. 3d 247, 250 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D907a]). Further, the denial of a motion for directed verdict must he sustained if it is supported by competent substantial evidence. See Jones v. Rives, 680 So. 2d 450, 451 (Fla. 1st DCA 1996) [21 Fla. L. Weekly D236b](citing Heiman v. Seaboard Coast Line R.R., 349 So. 2d 1187 (Fla. 1977)).
Appellant argues that the trial court erred in failing to grant Plaintiff’s motion for a directed verdict as to medical necessity and that the charges were reasonable in amount, as there was no evidence in the record to controvert the Plaintiff’s evidence as to those issues. This Court agrees. Dr. Weinstein testified that Ms. Eugene presented at his office on July 11, 2005 for injuries which occurred as a result of a July 8, 2005 motor vehicle accident. (R. 577 – 578). After conducting a physical examination, Dr. Weinstein rendered a diagnosis of severe traumatic thoracic myositis, severe traumatic lumbar myositis with left leg radiculopathy, and left wrist arthralgia. (R. at 594 – 595) Dr. Weinstein testified that, during the taking of the history, Ms. Eugene told him that she bad been diagnosed with hyperthyroidism two years before the accident. (R. at 579). However, Dr. Weinstein determined that this condition was not related to the motor vehicle accident and did not deem it necessary to order any records from her family physician. (R. at 580). Dr. Weinstein testified, within a reasonable degree of chiropractic probability, that the treatment provided to Ms. Eugene provided a benefit to her and that the charges for that treatment was reasonable in amount. (R. at 619 – 620). Dr. Weinstein also stated that, based upon the examinations he had performed during the course of treating Ms. Eugene, that the chiropractic treatment was medically necessary. (R. at 619).
United’s adjuster, Aleiea Khayoum, testified that United never sent a letter to Dr. Weinstein indicating that the medical records he had submitted were inadequate, that those records contradicted his billing, or that his reports were not sufficient y thorough so that they would justify non-payment. (R. at 681 – 682). United’s adjuster also testified that Ms. Eugene underwent an independent medical examination by Dr. Neil Fleischer. (R. at 685). The adjuster testified that United relied upon Dr. Fleischer’s opinion that treatment rendered prior to September 12, 2005 was payable. (R. at 686). Upon a. careful review of the record, this Court finds that Appellee has tailed. to offer any testimony to contradict this testimony that the treatments were medically necessary.
There is testimony from United’s medical expert, Dr. Donald Morris, that all the services rendered were not reimbursable based upon his January 8, 2006 peer review of Ms. Eugene’s treatment. (R. at 777). However, this Court notes that Dr. Morris never answered the question of whether the medical services were medically necessary. (R. at 777 – 778). Dr. Morris’s sole testimony that the charges were not “reimbursable” does not touch upon the issue of medical necessity. (R. at 777). Therefore, this Court finds that the trial court erred in failing to grant Plaintiff’s motion for a directed verdict since Appellee failed to present any evidence to contradict the testimony of Dr. Weinstein on the issue of whether the chiropractic treatment was medically necessary.2
Accordingly, it is hereby:
ORDERED and ADJUDGED that the trial court’s order denying Plaintiff’s motion for directed verdict, renewed motion for directed verdict, and motion for new trial is REVERSED and REMANDED with instructions to enter a directed verdict in favor of Plaintiff on the issue of medical necessity.
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1This Opinion vacates this Court’s December 13, 2010 Opinion.
2At oral argument, the parties stipulated that the only issue before this Court was medical necessity, and that this Court did not need to consider the issue reasonableness or relatedness.
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