21 Fla. L. Weekly Supp. 586b
Online Reference: FLWSUPP 2106HAMInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Deposition of insurer’s expert opining that 80% of 200% of Medicare fee schedule is reasonable charge for MRIs is not competent evidence where deponent relied only on case law and PIP statute in making that determination, and his interpretation of PIP statute was not based on sufficient facts, data or experience — Affidavit of adjuster who has no experience in MRI industry cannot create factual issue
HALLANDALE OPEN MRI, LLC, as assignee of Rosario Ham, Plaintiff, vs. STATE FARM MUTUAL AUTO INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-04687 CONO 73. March 10, 2014. Steven P. DeLuca, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Melissa McDavitt, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY DISPOSITION
THIS CAUSE having come before the court on March 10, 2014, on Plaintiff’s Motion for Summary Disposition on the issue of whether the Plaintiff’s MRIs were reasonable as to amounts charged. After reviewing the affidavits filed by the Plaintiff and the Defendant, the deposition of Dr. Weinreb, the Plaintiff’s request for admissions and responses to same, and after hearing argument of counsel for the parties, this court finds no triable issue as to the reasonableness of the Plaintiff’s charges.
The Plaintiff filed suit because the Defendant did not pay 80% of the charged amount for Plaintiff’s two MRIs which were billed at $1,650 each. The Defendant filed an answer alleging it paid a reasonable amount according to Fla. Stat. §627.736(5)(a)(1). The Defendant did not pled as an affirmative defense that the Plaintiff’s charges were unreasonable.
In support of the Plaintiff’s motion the Plaintiff’s is relying on the affidavit of its billing supervisor, Ms. Uziel, and the request for admissions and the responses thereto. The court finds, as a matter of law, the affidavit of Ms. Uziel sufficient to meet the Plaintiff’s prima facie burden that $1,650 was a reasonable charge for each MRI.
As it relates to the deposition of Dr. Weinreb which was filed by both the Plaintiff and the Defendant, Dr. Weinreb states he does not know with any specificity what any MRI center charged in 2012 for an MRI (pages 40-42, 49), he has never performed any analysis or evaluations as to what MRI centers charged (page 41), he did not know what any MRI centers would accept in the year 2012 as payment (page 41-42, 50), he did consider the Physicians Fee and Coding Guide, Ingengix, and Medical Fees in the US, as authoritative texts and these books reflect the Plaintiff’s charge are within the range of what is reasonable (pages 43-45), he did not know of any MRI center that would accept 80% of 200% of Medicare in PIP (page 47, 51), he believes hospitals charged from $1,800 to $2,200 for an MRI (page 51), he states the typical charge for an MRI is from $1,100 or $1,150 to $2100 (page 52-53, 94), the mean (average) or median charge for a non hospital would be $1500 and a hospital would charge more (page 53-54, 95), and he states that $1,650 is what is in the range for a reasonable charge (page 95). His use of 80% of 200% of Medicare is not competent evidence and cannot be considered by this court as he only considered case law and the PIP statute in making this determination (pages 54-56). An expert is not qualified to interpret Florida law as a basis to defeat Plaintiff’s motion for summary disposition. Additionally, the court finds Dr. Weinreb’s opinions, that mirror 627.726(5)(a)(2)(f), and his interpretation of the PIP statute to be invalid evidence because it is not based upon sufficient facts or data and he lacks experience in the requisite field. See §90.702 (2013).
Next, the court finds the affidavit of the adjuster Stephanie Moreno incapable of creating a triable issue. She is not an expert on MRIs. There is no evidence she has any experience, of any kind, in the MRI industry. The fact that State Farm paid what it considers a reasonable amount does not create a triable issue as to whether the charged amounts are reasonable as this is not an issue for the trier of fact.
The court must point out the simple fact that Medicare, workers compensation and other government based payors, by themselves, pays less than the billed amount does not, and cannot, create a triable issue. There are reasons why Medicare, which is not insurance as a matter of law, Workers compensation, and other government based payors reimburse at certain amounts and this court will not stack inferences to find that the Plaintiff’s charges are unreasonable simply because Medicare, Workers Compensation and other government based payors reimburse less than the amount charged by Plaintiff.
Neither Medicare nor Florida’s Workers Compensation schedules are part of §627.736(5)(a)(1). The fact that there is a New Jersey state fee schedule and it reimburses less does not, and cannot, create a triable issue as it is not part of §627.736(5)(a)(1) and it clearly has no bearing on reimbursement levels in the South Florida community. Fla. Stat. §627.736(5)(a)(2) is not part of §627.736(5)(a)(1). It is undisputed the Defendant did not make a written election in its policy to reimburse PIP claims based on §627.736(5)(a)(2). Additionally, the court finds the affidavit of Ms. Moreno conclusory as this adjuster cannot make a legal interpretation to defeat summary disposition. As such, this court finds it is not competent, legally insufficient, and cannot be used as summary disposition evidence to defeat Plaintiff’s motion.
Thus, based on the affidavit of Ms. Uziel, the Deposition of Dr. Weinreb wherein he states the charged amount is within the range of what is reasonable, the GEO Zip report that State Farm admitted was true and correct and which reflects that the Plaintiff’s charges are lower than many in South Florida, the requests for admission, the court finds there is no triable issue relating to Plaintiff’s charges and grants Plaintiff’s motion.
Lastly, and by agreement of the parties, the ordering of the cervical MRI was medically necessary and related making the only remaining issue in this case whether the ordering of the lumbar MRI was medically necessary and related to the crash.
The court will defer as to Plaintiff’s claim for fees and costs because the Defendant denied the Plaintiff’s requests for admission that its charge was reasonable.
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