21 Fla. L. Weekly Supp. 709a
Online Reference: FLWSUPP 2107PIERInsurance — Personal injury protection — Summary judgment — Reasonableness of charges — Medical provider met burden of proving that its charge for MRI services was reasonable — Opposing affidavit of litigation adjuster who was not expert and excluded consideration of evidence of any amounts above 200% of Medicare fee schedule is insufficient to create genuine issue of material fact — Summary judgment is granted in favor of provider
HALLANDALE OPEN MRI, LLC., as assignee of Guerda Pierre, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-22995 COCE 50. April 14, 2014. Peter B. Skolnik, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Russel Kolodeji, for Defendant.
CORRECTED ORDER GRANTING PLAINTIFF’SMOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on March 21, 2014, for hearing of the Plaintiff’s Motion for Final Summary Judgment, and the Court having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
The only remaining issue is whether $1,650.00 for the subject MRI is “reasonable” as to price. In support of its Motion for Final Summary Judgment, Plaintiff submitted and timely filed the affidavit of Norma Uziel, the Plaintiff’s billing supervisor, and the affidavit of Mrs. Torres who works for Palms MRI.
Ms. Uziel attests Plaintiff’s charges were reasonable, and usual and customary, based on her personal knowledge of HALLANDALE OPEN MRI, LLC company’s billing practices, office procedures, collection practices, reimbursement trends, and amounts others were charging for similar services in the community. She has worked for the Plaintiff since 2005 and is responsible for Plaintiff’s billing. She has testified three times at trial for the Plaintiff and was able to opine as to price. She is aware of what many of the other MRI centers charge as well as what the hospitals charge. The Plaintiff’s charge is about the same or less than many MRI centers in the community. She is also aware of what 4 different publications state is a reasonable range for an MRI and the Plaintiff’s charges are within the range of those publications. She further attests HALLANDALE OPEN MRI, LLC regularly and consistently received reimbursements of 80% of its charge of $1,650.00 (or 100% if the policy contained medical payments) from No-Fault Insurers who did not apply the permissive 200% Medicare limited reimbursement or adopt same in their policies. The Plaintiff also relied on the affidavit of Ms. Torres from Palms MRI which is consistent with the affidavit of Ms. Uziel. The Plaintiff filed the deposition transcript of the Defendant’s adjuster responsible for this file, Ninel Babtiste. Ms. Baptiste agreed that the MRI charges in the community are from $1200 to above $2000 (page 11) which is consistent with the Plaintiff’s affidavits. Ms. Batiste testified United paid based on 200% of Medicare because the Defendant was under the impression Florida allowed it (page 13).
The Court finds the Plaintiff’s affidavits satisfy Plaintiff’s burden to prove its charge of $1,650.00 for the MRI service at issue is reasonable. United Automobile Insurance Company v. Hallandale Open MRI, LLC (Antonette Williams) , Case No. 12-19662CACE (17th Cir. App December 11, 2013) [21 Fla. L. Weekly Supp. 399d]. Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So. 2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c] and the Court further finds the Defendant is not permitted to pay Plaintiff’s bill based on 200% of Medicare as a matter of law because the Defendant did not plead it, did not argue it was entitled to pay 200% of Medicare as a matter of law and did not make this clear election in its policy of insurance. See GEICO v. Virtual Imaging, 38 Fla. L. Weekly S517a (Fla. 2013).
In opposition, Defendant relies upon the affidavit of Ismail Sarabi served on 3/14/14, its designated litigation adjuster regarding reasonableness of pricing and his subsequently filed affidavit. The Plaintiff filed the deposition transcript of Mr. Sarabi on 6/26/13 and Plaintiff argues the Defendant failed to establish a disputed issue of material fact through Mr. Sarabi’s affidavit and deposition testimony. This Court agrees with the Plaintiff.
Once a party moving for summary judgment presents competent evidence to support its motion for summary judgment, that party is entitled to summary judgment unless the non-moving party can come forward with competent evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla. 1979). Under Rule 1.510(e), a court may consider evidence at a summary judgment hearing only if it would be “admissible in evidence.”
Pursuant to Fla. Stat. §627.736(5)(a)(1), in determining a reasonable charge, “consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.” Here, Defendant has failed to present competent, admissible evidence to rebut Plaintiff’s prima facie showing that their charge was, in fact, reasonable as reasonable is a range and not a set number.
Mr. Sarabi was not tendered as an expert by the Defendant at the hearing and, if he was tendered as an expert, the court finds he is not competent to be an expert witness according to Fla. Stat. §90.702(1)(2013) as his opinions are not based upon sufficient facts or data. (After the hearing concluded the Defendant clearly stipulated Mr. Sarabi was not tendered as an expert). Thus, he must be considered as a lay witness with regard to “reasonableness.” Plaintiff deposed Mr. Sarabi at length to determine the basis for his opinion that the medical charges billed at issue in this litigation are not reasonable in price.
Mr. Sarabi testified at deposition that it was his “personal opinion” the amount tendered by the Defendant of $981.28 was reasonable because 100% of medicare is a reasonable amount and United tendered double Medicare (pages 5-6). He had no other opinions. In formulating this opinion he did not do any specific analysis (page 8). He did not know what any specific MRI centers charged other than 3 that charged at the “fee schedule” (10-11), he only knew what a few MRI centers accepted because they accepted checks from the Defendant that stated full and final (11-12) but he did not bring any of those documents to his deposition (page 14), in preparing for the deposition he did not look for any MRI centers that charged more than the Plaintiff (19), he did not bring any underlying data (20), he agrees he is not an expert in Medicare and that Medicare is not private insurance (46 and 51), reasonable is a range (52), he has never worked for a health insurer or negotiated with a health insurer (55), the Defendant had no expert reports, peer reviews, studies, publications or documents in its possession to establish that Plaintiff’s charge was unreasonable (69-70) , he did not know of any PIP insurer that pay based on 100% of Medicare (77) and he did not know of any other expert that agreed that 100% of Medicare is reasonable amount for a PIP insurer to pay for an MRI (77), the Defendant’s contract requires the Defendant to pay a reasonable amount and reasonable is not defined (81) and he has never testified in a court of law on what is a reasonable charge for an MRI (81).
In his affidavit and testimony, Mr. Sarabi completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider. Similarly, he excludes consideration of any amounts above 200% of Medicare in reaching his ultimate conclusion that an amount equal to 200% of Medicare is a reasonable charge. In essence, Defendant’s expert’s ultimate opinion excludes any data which could cause an increase in the outcome.
It is clear to this court the Plaintiff’s charge is within the range of what most MRI Providers charge for this CPT Code. Mr. Sarabi’s affidavit was insufficient to create a question of Fact even if his affidavit has additional facts that he was unaware of at the time of his deposition. Cherry picking a handful of centers, after his deposition, that charge less than the Plaintiff does not mean the Plaintiff’s charge is unreasonable.
Reasonableness is a range and is not just one number. Defendant has provided no evidence that Plaintiff’s charge is outside of the range of what is reasonable.
To the extent Defendant relies upon Mr. Sarabi as its corporate designee and fact witness, the testimony and affidavit fail to present admissible evidence which would create a genuine issue of material fact. The opinion offered (that 200% of Medicare is a reasonable amount for the service at issue) is inadmissible lay opinion testimony. Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived, and usually involves matters such as distance, time, size, weight, form and identity. Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1991) citing Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So.2d 140 (Fla. 4th DCA 1985). See also United Automobile Insurance Company v. Miami Neurology Rehabilitation Specialists A/a/o Maria Broche, 19 Fla. L. Weekly Supp. 799a (11th Cir. App. June 19, 2012)(Testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness, and not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702). Essentially, Defendant’s corporate designee’s opinion is that 200% of Medicare is the amount United Automobile found to be reasonable, so he agrees with that. Thus, as a matter of law, the opinions offered by Mr. Sarabi are not rationally based on his own perception and are not the type of lay opinions which can be relied upon by the Defendant. In addition, conclusory statements are not adequate to create an issue of fact and are insufficient to avoid summary judgment.
Further, it is undisputed that Medicare is not insurance. The fact that Medicare, Tricare, Workers Compensation, health insurance, etc. pay less than the billed amount does not mean the Plaintiff’s charge is unreasonable without any additional evidence. This would require the improper stacking of inferences as Medicare and Workers Compensation pays what the government sets forth without any regard to what is a reasonable amount for a particular service. Health insurers such as HMO and PPOs pay less but they provide the doctors with a flow of business, guaranteed payment and very low risk. Therefore, the fact an HMO or PPO pays less does not mean the Plaintiff’s charge is unreasonable. The Defendant simply fails to explain or justify why 200% of Medicare, without any more evidence, is sufficient to create a question of fact where the Defendant did not make this clear and express election in its policy of insurance.
It is well settled that in order to take advantage of the more limited reimbursement provided by Fla. Stat. §627.736(5)(a)(2)(f), the insurer must specify that method to the exclusion of any others. Geico General Insurance Co. v. Virtual Imaging Services, Inc. (“Virtual II ”), 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] aff’d __ So. 3d __, 2013 WL 3332385 (Fla. 2013); DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. Defendant is not permitted to use the “200% Medicare” as the exclusive methodology to limit reimbursement unless it can demonstrate that amount is the maximum reasonable amount under some alternative means. Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55, 57 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a](“Furthermore, as section 627.736(5)(a)(2) provides that insurers “may” consult the Medicare fee schedule, it follows that, under the statute, insurers who choose not to do so have recourse to some alternative means for determining a reimbursement amount.”). For the reasons stated above, Defendant has not come forward with any admissible evidence demonstrating it paid a “reasonable” amount which would create a genuine issue of material fact.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. The Plaintiff is directed to submit to the Court a proposed final judgment.
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