21 Fla. L. Weekly Supp. 1080a

Online Reference: FLWSUPP 2110DUNCInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary disposition — Opposing affidavits filed by insurer do not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charge where affidavits are conclusory and lack foundation, and affiants are not qualified to render opinion on reasonableness of MRI charge — Fact that Medicare, workers’ compensation and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge

HALLANDALE OPEN MRI, LLC, as assignee of Ian Duncan, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-014681 CONO 73. May 29, 2014. Steven P. DeLuca, Judge. Counsel: Cris Evan Boyer, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Melissa McDavitt, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY DISPOSITION

This cause came before the court, on May 29, 2014, after due notice to the parties, on Plaintiff’s Motion for Summary Disposition. The amount in controversy is $1,083.70. After review of the pleadings, the affidavits of Ms. Uziel and Mr. Spell, Mr. Postell, the evidence, the deposition of Mr. Postell and Ms. Uzeil, the Plaintiff’s request for admissions and Defendant’s responses (any request for admissions such as the request for admissions dated 1/10/14 that were not responded to have been deemed admitted), the rest of the record, and after hearing argument of counsel for the parties, the court finds no triable issue according to Rule 7.135 issue which was reserved by this court and hereby grants Final Summary Disposition in favor of the Plaintiff and against the Defendant on this issue. The issue of medical necessity and related was resolved by way of an agreed order on 2/26/14.

Hallandale Open MRI, as assignee of Ian Duncan, sued State Farm Mutual Automobile Insurance Company (herein after State Farm) for breach of a contract of personal injury protection benefits under the Florida No Fault law in Small Claims Court because the Defendant did not pay 80% of the charged amount for two MRIs.

The Defendant’s policy which requires the Defendant to pay 80% of all reasonable expenses. The policy does not have a set number as to what it will pay for medical services. In this case, the Plaintiff billed $1,650 for each MRI which took place in 2011 in Broward County. State Farm Mutual received the bill and paid based on 80% of 200% of Medicare part B, 2007 and not 80% of the billed amount. The Defendant’s policy does not state it will pay claims based on 200% of medicare specifically or even generally. Nor is it an affirmative defense that the Defendant will pay medical bills based on the fee limitations found in §627.736(5)(a)(2).

The amount tendered by the Defendant was not accepted as payment in full by Hallandale Open MRI who, after serving a demand letter, sued State Farm Mutual Auto for breach of contract for the balance. The Defendant filed an answer and the Defendant alleged it paid an appropriate and allowable amount. The Defendant did not plead the Plaintiff’s charge was unreasonable.

The matter is ripe for Summary Disposition as there are no pending motions to strike, to supplement the record, and there has been sufficient time to complete reasonable discovery. The court considered all arguments made by counsel, the pleadings and the documents filed by the parties in ruling on this matter.

Hallandale moved for Summary Disposition based on a detailed and competent affidavit of Ms. Uziel, billing supervisor, who, based on substantial showing, avers that the amount of Plaintiff’s charge of $1650 per MRI is reasonable. (The affidavit of Mrs. Torres was withdrawn by the Plaintiff and substituted with the affidavit of Mrs. Uziel).

Ms. Uziel has personal experience and knowledge of the MRI industry and what is a reasonable charge for an MRI. She is aware of what other MRI centers charge, what the Plaintiff has been paid, and she has relied on four (4) different publications to confirm the Plaintiff’s charge is within the range of what is reasonable. She has testified on three different occasions that the charged amount is reasonable in Broward County.

The court finds the affidavit of Ms. Uziel, the deposition of Mr. Postell, and the Defendant’s responses to Plaintiff’s request for admissions which establishes not only what many other MRI centers charge but what State Farm has allowed meets the Plaintiff’s prima facie burden to establish the Plaintiff’s charge is within the range of reasonable. See United Auto v. Hallandale Open a/a/o Antoneete Williams, 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. App December 11, 2013) and Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So.2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c]. See also In Pan Am Diagnostic Svcs., Inc. a/a/o Fritz Telusma v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. 17th Jud. Cir., October 1, 2013) Judge Lee opined:

A plaintiff’s prima facie showing of the reasonableness of its charges can be established by merely presenting the medical bill produced for the service at issue, along with testimony that the patient received the treatment in question. See A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; Iowa Mutual Nat’l Ins. Co. v. Worthy, 447 So.2d 998, 1000 n.5 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409, 409-10 (Fla. 1st DCA 1979); State Farm Mutual Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (11th Cir. Ct. 2004) (appellate capacity). As noted by the Fourth DCA, “[A] medical bill constitutes the provider’s opinion of a reasonable charge for the services.” A.J., 677 So.2d at 937. In the alternative, a plaintiff may also present lay testimony from a fact witness with firsthand knowledge as to why the charge for the service was set at the rate at which it was billed. Multicare, 12 Fla. L. Weekly Supp. at 33a. A plaintiff may, but is not required to, produce an expert witness to establish the reasonableness of its charges. Sea World of Florida, Inc. v. Ace American Ins. Co., Inc., 28 So.3d 158, 160 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So.2d 1122, 1123 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]; A.J., 677 So.2d at 937-38; East West Karate Assn, Inc. v. Riquelme, 638 So.2d 605, 605 (Fla. 4th DCA 1994); Multicare, 12 Fla. L. Weekly Supp. at 33a; Kompothrecas v. Progressive Consumers Ins. Co., 8 Fla. L. Weekly Supp. 505a, 506 (Sarasota Cty. Ct. 2001).

Pursuant to Rule 7.135 the Plaintiff would be entitled to summary disposition if there is no triable issue. See United Auto v. Hallandale Open a/a/o Antoneete Williams, FLWSUPP 2105WILL (Fla. 17th Cir. Court 2013) [21 Fla. L. Weekly Supp. 399d]. The Defendant may not defeat a motion for Summary Disposition by raising purely paper issues where the pleadings and evidentiary matters before the trial court show that defenses are without substance in fact or law. It is not sufficient for the opposing party to merely assert that an issue does exist.

The court finds that Hallandale Open MRI met its burden of establishing the reasonableness of the MRI charge based on the affidavits of Ms. Norma Uziel which explains why $1650 is a reasonable charge for each MRI conducted in 2011 in Broward County and the Defendant’s responses to Plaintiff’s request for admissions. Since the Plaintiff met its burden, the burden now shifts to the Defendant to establish a genuine issue of material fact.

The court finds State Farm Mutual Auto did not meet its burden to establish a triable issue as to the reasonableness of the charge for the Plaintiff’s MRI. The Defendant’s affidavits are legally insufficient.

First, the affidavit of Mr. Spell stating the billed amount is unreasonable is conclusory, based on inadmissible hearsay and lacks foundation or the basis for his opinion that the amount charged was unreasonable. There were no documents attached to his affidavit. The Plaintiff filed a deposition and affidavit of Mr. Spell establish that Mr. Spell could not provide the court with the data even if ordered to do so by the court. The affidavit of Mr. Spell filed by the Plaintiff states the costs associated with producing the underlying data would be between $6,000 and $12,000. A conclusory affidavit of a party is insufficient to create a triable issue. A party does not create a triable issue of fact by merely stating factual conclusions. There is a long list of county court judges that refuse to consider Mr. Spell’s affidavit sufficient to defeat either Summary Judgment or summary disposition on the issue of price including the appellate decision of State Farm v. Imaging Center of Pensacola, Circuit Case number 2012-AP-000052 (Fla. 1st Circuit Court 2014), Broward Rehab Center a/a/o Meloche . State Farm, Case number 12-007151 COCE 56 (Fla. Broward County Court 2014, Judge Pratt). This court agrees with the other judges.

Mr. Spell’s affidavit fails to include a range of what other MRI providers charge for the same service during the time in question for South Florida, what MRI providers accept as payment in full, what PIP insurers pay when the insurer pays based on a reasonable amount, what out of network health insurers pay, a factual basis to establish he is qualified to give any opinions on what is a reasonable charge for an MRI in South Florida in 2011, an analysis of how he arrived at his opinions, and he did not attach any of the documents he relied upon.

There is no record evidence that Mr. Spell is qualified to give any opinions in this case on what is a reasonable charge for an MRI. Mr. Spell’s knowledge of what certain payors pay for MRIs does not make him qualified to state a billed amount is unreasonable. This court agrees with the numerous judges around the State that Mr. Spell is not qualified to opine as an expert on what is a reasonable charge according to Fla. Stat. §90.956. As such, he will be considered as a lay witness by this court. Opinion testimony of a lay witnesses 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). As a lay witness, the only information Mr. Spell provides is his knowledge of reimbursement levels by the payors mentioned in his affidavit. He cannot provide an ultimate opinion as to whether the Plaintiff’s charge is reasonable. His opinion as to what is a reasonable payment is not relevant as the issue is whether the charged amount is within the range of what reasonable.

As it relates to the amended affidavit of Mr. Asher Postell served on 5/22/14, the court finds this affidavit legally insufficient to create a triable issue. The Plaintiff filed his deposition transcript on 5/21/14.

Mr. Postell was not tendered as an expert by the Defendant at his deposition or 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.

In his affidavit, Mr. Postell, a fact witness, completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider from PIP insurers that pay a reasonable amount. 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, Mr. Postell’s ultimate opinion excludes any data which could cause an increase in the outcome based almost exclusively on hearsay.

It is clear to this court based on the record the Plaintiff’s charges are within the range of what most MRI Providers charge for this CPT Code which is consistent with the record. Reasonable, according to the Defendant’s policy of insurance and the PIP statute, is not a set number. It is range. Mr. Postell states in his deposition, at page 25, that the charged amount is unreasonable because it exceed Medicare, Medicaid, Workers Compensation and the opinion of Mr. Spell and no other basis used to formulate his opinion. The Court finds Mr. Postell’s affidavit is legally insufficient to create a triable issue. Mr. Postell states in his affidavit that he is employed by the Defendant as a Claims Representative.

He has absolutely no knowledge or experience in the MRI industry or relevant experience in the medical billing field. His ultimate opinion is that the Defendant’s payment was reasonable and the charged amount is unreasonable because the Plaintiff accepts less from Medicare, workers compensation patients and private health insurance patients. This is not enough. The issue is NOT whether the paid amount is reasonable. The issue is whether the billed amount is reasonable.

Mr. Postell’s affidavit is nothing more than hearsay, conclusory, incomplete, does not have sufficient facts, data or analysis to support his lay opinions. Defendant has not provided any admissible competent evidence to create a triable issue as to whether the Plaintiff’s charge is outside of the range of what is reasonable.

To the extent Defendant relies upon Mr. Postell as its corporate designee and fact witness, the affidavit fails to present admissible evidence which would create a triable issue. The opinion offered that the charged amount is unreasonable 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).

Thus, as a matter of law, the opinions offered by Mr. Postell 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 a triable issue and are insufficient to avoid Summary Disposition. Essentially, Mr. Postell affidavit states the charged amount is unreasonable because the charged amount exceeds the allowed amounts as set forth by Medicare, Workers Compensation, New Jersey, Medicaid and health insurance.

In this case, the Defendant paid based on 200% of Medicare, 2007 Part B but the Defendant’s policy of insurance does not give the Defendant this payment methodology option. See page 38 of Postell’s deposition. The Defendant is not permitted to invoke the payment limitations of §627.736(5)(a)(2) without complying with the provisions of Kingsway v. Ocean Health, 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] as §627.736(5)(a)(2) is a payment limitation.

The fact that the PIP statute has a limitation of 200% of medicare under F.S. §627.736(5)(a)(2) is irrelevant as the Defendant has not alleged it paid pursuant to §627.736(5)(a)(2) and 200% of medicare is not a factor to consider within F.S. §627.736(5)(a)(1) which has specific factors. Likewise, whether the Defendant paid a reasonable amount is not an issue for consideration for the jury as the Plaintiff has the burden to prove its charge is reasonable. The Defendant does not have to prove it paid a reasonable amount. The Plaintiff must prove its charge is within the range of what is reasonable. Reasonable is not a set number.

Had the legislature wanted courts to consider 200% of medicare in an analysis of what is a reasonable charge for a medical provider it would have expressly provided for this provision as the legislature specifically addressed 200% of medicare in §627.736(5)(a)(2). See SOCC v. State Farm, 95 So.3d (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a]. Had the legislature wanted every medical bill be determined by a jury where the provider charged more than Medicare, workers compensation or an in-network health insurers the legislature would have expressly done so. The purpose of the no fault scheme is to provide swift and virtually automatic payment so that the injured may get on with his life without undue financial interruption. Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla. 2000) [25 Fla. L. Weekly S1103a]; Nichols v. State Farm, 851 So.2d 742 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1404a]; United v. Stat Technologies, 787 So.2d 920 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D1237b], Government Employees v. Gonzolez, 512 So.2d 269 (Fla. 3d DCA 1987); Allstate v. Holy Cross Hospital, 32 Fla. L. Weekly S453a (Fla. 2007); USAA Casualty Insurance Co. V. Shelton, 932 So.2d 605 (Fla. 2d DCA 2006) [20 Fla. L. Weekly D2650b].

Thus, based on the Defendant’s affidavits there is simply no competent admissible evidence to create a triable issue that the charged amount was unreasonable. The fact that Medicare, Workers Compensation„ etc., allows less than the amount billed by the Plaintiff in this case, by itself, is not sufficient to create a triable issue that the Plaintiff’s charge was unreasonable. See Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D2650b]. The Defendant’s affidavits fail to set forth a valid basis to explain why the Plaintiff’s charge is unreasonable simply because Medicare, workers compensation, etc. pays less.

State Farm Mutual has not rebutted this evidence in the record or offered any proof that the charge is unreasonable, other than the conclusory affidavit of Mr. Spell and Mr. Powell. Finding the Plaintiff’s charge is unreasonable based on what Medicare, Workers Compensation, etc. allow 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. While this court will draw all possible reasonable inferences of material fact in favor of the Defendant, this court cannot find the inference that since Medicare workers compensation, and health insurance pay less than the billed amount there is a triable issue as to what is a reasonable charge. This would not be a reasonable inference to the exclusion of any other reasonable inference based on this record.

Finally, State Farm’s reliance on Medicare is not persuasive as Medicare is not insurance. Medicare is social welfare. See Atkins v. Allstate, 382 So. 2d 1276 (Fla. 3d 1980) where the court held:

But the basic fact is that Medicare is a social welfare program and not an insurance or reimbursement plan within the everyday and ordinary meaning of these terms. Medicare was added to the existing Social Security laws in 1965 and as yet there have been few, if any, judicial decisions defining its scope.

In the appellate decision of Hialeah Medical Assoc a/a/o Lexcano v. United Auto. 12-229 (Fla. 11th Cir. App. Court 2014) [21 Fla. L. Weekly Supp. 487b] the court held “Medicare fee schedules are not relevant in PIP cases, and should not be used.”

Accordingly, Hallandale Open MRI’s Motion for Summary Disposition is hereby granted for the reasons set forth above and the reasons argued at the hearing. The Plaintiff’s motion for fees and costs are hereby granted.

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