21 Fla. L. Weekly Supp. 812a
Online Reference: FLWSUPP 2108MOORInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavits filed by insurer do not preclude summary judgment 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 and workers’ compensation allow 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 ULYSSES MOORE, Plaintiff, vs. STATE FARM MUTUAL AUTO INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-5953 CONO 71. April 23, 2014. Louis H. Schiff, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Melissa McDavitt, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on April 23, 2014, for hearing on the Plaintiff’s Motion for Summary Judgment, and the Court having reviewed the Motion, the entire Court file including Plaintiff’s request for admissions and the Defendant’s responses and any responses not filed are deemed admitted, 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 Plaintiff, a medical provider, filed suit because the Defendant did not pay 80% of the billed amount for its services. The Defendant’s policy of insurance required the Defendant to pay 80% of all reasonable expenses (See the deposition of Joffer Faria taken by the Plaintiff and filed). The Plaintiff charged $1650 for the MRI without contrast (see the affidavit of Mrs. Uziel). The Defendant paid the Plaintiff 860.30 which is 80% of 200% of Medicare Part B from 2007. See the deposition of Mr. Faria filed by the Plaintiff. The amount in controversy is $459.70 which is the difference between the billed amount and paid amount at 80%.
Medical necessity and related is not an issue as the Defendant filed nothing in opposition to the affidavit of Dr. Moss filed by the Plaintiff. Thus, the only remaining issue for this court is whether the Plaintiff’s charge was “reasonable” as to price. It is axiomatic that “reasonable” is a range and not a set number. It is undisputed the Defendant did not elect to pay the Plaintiff’s medical bills based on §627.736(5)(a)(2). The Defendant did not plead §627.736(5)(a)(2) as an affirmative defense. Thus, the question is whether the Plaintiff’s charges for the CPT code at issue is within the range of what is reasonable.
In support of its Motion for Summary Judgment, Plaintiff submitted, and timely filed, the detailed affidavit of Belkys Torres and Norma Uziel. The court finds the Plaintiff’s affidavits meets its burden of proof and prima facie case.
The Defendant did not file any evidence establishing the billed amount is outside the range of other doctors charge for the same services. The Defendant presented no evidence that PIP insurers did not pay the Plaintiff’s bills without reduction. In fact, the Defendant’s responses to Plaintiff’s request for admissions and the deposition transcript of Mr. Faria, which the Plaintiff relies upon, supports the Plaintiff’s argument as to what other MRI centers charge and what State Farm has allowed.
The Court finds the Plaintiff’s affidavits satisfy Plaintiff’s burden to prove its charges are within the range of what is reasonable for the CPT codes at issue. See Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So.2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c].
Pursuant to Rule 1.510 the Plaintiff would be entitled to Summary Judgment if there is no genuine issue of material fact. The Defendant may not defeat a motion for Summary Judgment 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 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 in this manner 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) and the affidavit of Margaret Amoroso.
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 903 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a].
In opposition, Defendant relies upon the affidavit of Mr. Spell, an actuary hired by the Defendant. The Defendant also filed an untimely affidavit of Melissa Reed on April 22, 2014, the day before Plaintiff’s hearing on its Motion. Plaintiff argues the Defendant’s affidavits fail to establish a genuine issue of material fact. 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 geniune issue of material fact.
The court finds Mr. Spell 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. He did not attach any of his data and the Plaintiff filed a deposition explaining the costs associated with Mr. Spell obtaining the underlying data. Thus, he must be considered as a lay witness with regard to “reasonableness.” The court finds the affidavit of Mr. Spell stating the billed amount is unreasonable is self-serving, conclusory, is based on inadmissible hearsay and lacks foundation or the basis for his opinion that the amount charged was unreasonable. A conclusory affidavit of a party is insufficient to create a disputed issue of material fact. Master Tech v. Matec, 49 So.3d 789, 791 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2381a]. A party does not create a disputed issue of fact by merely stating factual conclusions. Id. Mr. Spell cannot overcome Plaintiff’s affidavit simply by stating Medicare, Medicaid, health insurance etc. pays less than the billed amount.
Mr. Spell’s affidavit fails to include any 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, 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 2012, 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. He has no experience in the MRI field or in billing for MRIs. Mr. Spell’s knowledge of what certain payors pay for MRIs does not make him qualified to state a billed amount is unreasonable. The issue for the jury is not whether the Defendant paid a reasonable amount. Instead, the issue is whether the charged amount is reasonable and as stated above reasonable is a range and not a set number or any deviation of Medicare, Workers Compensation, etc..
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. See the Circuit Appellate Decision of State Farm v. Imaging Center of Pensacola, 2012-AP-000052 (Cir. Court of the First District 2014).
The affidavit of Ms. Reed, which the court finds is untimely, also fails to establish a genuine issue of material fact. She has no experience in the MRI field. Nothing is attached to her affidavit. She simply relies upon Medicare and Workers Compensation. The court finds there is nothing in her affidavit which would create an issue of material fact as to whether the Plaintiffs charge is reasonable for the same reasons addressed in the Spell affidavit.
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 notbased 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 Ms. Reed and Mr. Spell are not rationally based on their own perception and are not the type of lay opinions which can be relied upon by the Defendant. In addition, conclusory and self serving statements are not adequate to create a genuine issue of material fact and are insufficient to avoid Summary Judgment.
Further, it is undisputed that Medicare is not insurance. The fact that Medicare, 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 and has no probative value. The Defendant simply fails to explain or justify why 200% of Medicare, without any more evidence, is sufficient to create a genuine issue of material fact where the Defendant did not make this clear and express election in its policy of insurance.
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.
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.”).
The purpose behind the no fault statute is prompt and virtual automatic payment of medical claims. The fact that Medicare and Workers Compensation pays less than the billed amount does not mean, without more, that the Plaintiff’s charge is unreasonable.
For the reasons stated above, Defendant has not come forward with any admissible evidence demonstrating the Plaintiff’s charge is unreasonable.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED.
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