21 Fla. L. Weekly Supp. 691a
Online Reference: FLWSUPP 2107HERNInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit was inconsistent with insurer’s previous litigation position that reduction of provider’s bill was based on application of statutory fee schedule, which was not elected as reimbursement method in policy
HALLANDALE BEACH ORTHOPEDICS, INC., (a/a/o Patricia Hernandez), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 09-27808 SP 23 (02). April 18, 2014. Caryn Schwartz, Judge. Counsel: Kenneth J. Dorchak, Buchalter, Hoffman and Dorchak, North Miami, for Plaintiff. Iftikhar Memon and Norma Kassner, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND FINALSUMMARY JUDGMENT FOR PLAINTIFF
This matter having come before the Court on this 8th day of April 2014 on the Plaintiff’s Motion for Summary Judgment, and after having considered the argument of counsel present, having reviewed all the applicable documents in the Court file, and those which were presented to the Court at the hearing by the attorneys, after having reviewed all the case law provided by the attorneys and being fully advised of the premises thereof, the Court finds:
1. Patricia Hernandez was involved in an automobile accident on 12/20/2008 and at that time she was covered by a policy of insurance issued by the Defendant which policy provided for Personal Injury Protection benefits.
2. On 4/9/2009 the Plaintiff provided medical services to Patricia Hernandez. By way of an assignment of benefits the Plaintiff submitted its bill in the amount of $550.00 for payment by the Defendant.
3. Defendant paid the amount of $308.43 which payment represents 80% of 200% of Medicare Part B and the amount provided for in Section 627.736(5)(a)(2)(f), Fla. Stat.
4. Plaintiff has filed suit seeking payment in the amount of 80% of the amount billed which amount is $440.00.
5. Defendant previously filed a motion for summary judgment wherein it argued that given that it paid 80% of 200% of Medicare that as a matter of law the payment made satisfied its obligation to the Plaintiff. The Defendant argued that it relied upon the provision of Section 627.736(5)(a)(2)(f) when issuing payment.
6. This Court previously denied the Defendant’s motion for summary judgment finding that the policy at issued failed to provide for payment in accordance with the provisions of Section 627.736(5)(a)(f), Fla. Stat. See GEICO General Insurance Company v. Virtual Imaging Services, Inc., 2013 WL 3332385 (Fla. 2013) [38 Fla. L. Weekly S517a] decided after this Court ruling on the Defendant’s motion for summary judgment.
7. Plaintiff now files its motion for summary judgment as to the lone remaining issue in this matter which is whether the submitted charge for CPT code 99244 in the amount of $550.00 is reasonable.
In support of the reasonableness of the charge at issue, the Plaintiff has provided the affidavit of Dr. Harry Cooper, D.O. who states that he has been licensed to practice medicine since 1979, that he is the owner and operator of Hallandale Beach Orthopedics, Inc. and that the submitted charge is the Plaintiff’s usual and customary charge for which it has received payment at 80% under policies of PIP insurance that pay based upon a reasonable amount standard without reduction.
The Court finds that such affidavit meets the Plaintiff’s prima facie case under the provisions of Section 627.736(5)(a)(1), Fla. Stat. See United Automobile Insurance Company v. Hallandale Open MRI, LLC., 17th Cir. Court App. Div. (2013) – Section 627.736(5)(a)(2)(f), Fla. Stat., does not mandate consideration of every factor when determining a reasonable amount and provider met burden by showing that submitted charges were provider’s usual and customary charge and that the affiant had knowledge of payments accepted by the provider for the same procedure. See also United Automobile Insurance Company v. Hallandale Open MRI, LLC, a/a/o Antonette Williams (17th Cir. App. December 11, 2013, 12-19662CACE) [21 Fla. L. Weekly Supp. 399d].
8. In opposition to the Plaintiff’s affidavit, the Defendant has submitted the affidavit of Monica Johnson, an adjuster for the Defendant.
This Court has considered the recent 11th Circuit Court Appellate Court decision in Hialeah Medical Association, a/a/ Ana Lexcano v. United Automobile Insurance Company, (11th Cir. App. March 7, 2014) [21 Fla. L. Weekly Supp. 487b] [“Lexcano” case] and cases cited therein upon which the Lexcano Court relies, as well as the reasoning in several County Court cases provided by Plaintiff at the hearing. The Court in Lexcano remanded the matter back to the trial court to enter a summary judgment in favor of the medical provider, finding that the Court should not have denied such motion where the only evidence in opposition to the Plaintiff’s affidavit was that of two adjusters who admitted to relying upon the Medicare fee schedule, in addition to other things in issuing payment. A review of the affidavit rejected by the Lexcano Court shows that the adjuster based his opinion on his familiarity with all stages of the claims adjustment process, his review of hundreds of medical bills, familiarity with CPT codes commonly used, his familiarity with usual and customary rates charges by providers in South Florida and that the medical charges are above the usual and customary charge and are therefore unreasonable. The appellate court found that neither adjuster affidavit was based upon relevant or sufficient data and “thus such testimony should not have been allowed.”
At the hearing in this matter, the Defendant presented one of the affidavits at issue in the Lexcano matter which was found by that Court to be inadequate and inadmissible. This Court finds that the affidavit of Monica Johnson presented in this matter is equally inadmissible as the one at issue in the Lexcano matter, however, the Court has also considered the facts and reasoning set forth in Paragraph 9 of this Order/Final Judgment, below, as a factor in the Court’s finding in this Paragraph 8.
9. Of greatest significance to this Court, the Court finds that Ms. Johnson’s affidavit in this matter is inconsistent with the Defendant’s previous litigation position. The Defendant previously filed a motion for summary judgment with an attached affidavit wherein it asserted that the basis of the reduction of the Plaintiff’s charge and the payment made in this matter were based upon application Section 627.736(5)(a)(2)(f), Fla. Stat. The Defendant admitted in response to the Plaintiff’s request for admissions that the reduction of the Plaintiff’s bill was based upon an application of Section 627.736(5)(a)(2)(f), Fla. Stat. A party may not alter its previous sworn statements and litigation position solely for the purpose of avoiding summary judgment. Ellision v. Anderson, 74 So.2d 680 (Fla. 1954); Willage v. Law Offices of Wallace and Breslow, P.A., 415 So.2d 767 (Fla. 3rd DCA 1982); Berger v. Lewison, 521 So.2d 311 (Fla. 3rd DCA 1988).
The Defendant has been litigating this matter based upon the assertion that the Plaintiff’s charges exceeded 200% of Medicare Part B as provided for in Section 627.736(5)(a)(2)(f), Fla. Stat. In an effort to avoid the impact of the Supreme Court’s decision in GEICO General Insurance Company v. Virtual Imaging Services, Inc., 2013 WL 3332385 (Fla. 2013)[38 Fla. L. Weekly S517a] and Kingsway Amigo Ins. Co. v Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA) [36 Fla. L. Weekly D1062a], Defendant now for the first time, in response to the Plaintiff’s motion for summary judgment, attempts to create a paper issue on the reasonableness of the Plaintiff’s charges. A party may not avoid summary judgment merely by creating a paper issue. See Reflex N.V. v. UMET Trust, 336 So.2d 473 (Fla. 3rd DCA 1976). See also Hialeah Medical Association, a/a/ Ana Lexcano v. United Automobile Insurance Company, (11. Cir. App. March 7, 2014) [21 Fla. L. Weekly Supp. 487b].
Accordingly, the Plaintiff’s Motion for Summary Judgment is hereby GRANTED.
That a final judgment is hereby entered in favor of the Plaintiff, HALLANDALE BEACH ORTHOPEDICS, INC., 1250 East Hallandale Beach Blvd., Suite 700, Hallandale, FL 33009 and the Plaintiff shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, FEI #FEI # 65-0415688, the amount of $131.57, representing the benefits and the amount of $51.07 for a total judgment against the Defendant in the amount of $183.47.
IT IS FURTHER ORDERED AND ADJUDGED that the Court finds that the Plaintiff is entitled to an award of reasonable attorney’s fees and costs and shall reserve jurisdiction over this matter for purposes of determining the amount of such fees and costs.
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