21 Fla. L. Weekly Supp. 592a
Online Reference: FLWSUPP 2106JRODInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Where affidavit of insurer’s expert opining that 200% of Medicare fee schedule is reasonable charge does not take into consideration any amount except Medicare fee schedule and fails to attach underlying data, insurer has not demonstrated that opinion is based upon sufficient facts or data and has failed to rebut medical provider’s affidavit as to reasonableness of charges
HEALTH DIAGNOSTICS OF MIAMI, LLC, a/a/o Justo Rodriguez, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 11-489(72). February 24, 2014. Honorable Jill K. Levy, Judge. Counsel: Travis L. Stock, Weinstein Law Firm, Coral Springs, for Plaintiff. Sean Sweeney, Gregory Blackburn, and Jennifer N. Lucy, Office of the General Counsel, Miami Gardens, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT AS TOREASONABLE, RELATED AND NECESSARY
THIS CAUSE having come before the Court on Plaintiff Motion for Summary Judgment on January 29, 2014, and the Court having reviewed the motions and record evidence, having heard argument of counsel and otherwise being fully advised in the premises, finds as follows:FACTS
This lawsuit arises out of a reduction of PIP benefits to Plaintiff, Health Diagnostics of Miami, LLC d/b/a Stand-Up MRI of Miami (“STAND-UP MRI”) for diagnostic exams provided to Justo Rodriguez, the insured, under an insurance policy issued by Defendant, United Automobile Insurance Co. (“UNITED”). STAND-UP MRI submitted a bill to UNITED for CPT code 72141 in the amount of $1,600.00. UNITED reduced the bill to the Medicare Part B Fee Schedule and offered payment of $975.50 which is 80% of the Medicare Part B Fee Schedule amount. After discovery began, Plaintiff filed its Motion for Final Summary Judgment on the issue of reasonable, related and necessary. UNITED did not dispute the related and necessary component so the only issue for the Court to consider is whether the amount billed by STAND-UP MRI was reasonable. UNITED does not dispute that the PIP insurance policy does not expressly elect to limit reimbursement to the statutory fee schedule as well.
On the issue of reasonableness, STAND-UP MRI relied on the affidavit of Carmen Rodriguez who is the billing and collections manager of the management company who handles Plaintiff’s billing. She testified that the amount charged by STAND-UP MRI was reasonable and customary based upon her familiarity with what other insurers have paid for like services.
UNITED relied on its affidavit of Ismail Sarabi who was listed as an expert witness on UNITED’s pretrial witness list. In his affidavit, he testifies that he has works as a litigation adjuster for UNITED. He testifies that this affidavit is based upon his review of the attached documentation which he relies upon in forming his opinion as an expert witness. However, there was no underlying data attached.
CONCLUSIONS OF LAW
Pursuant to Florida Statute §90.702(1)(2013), the party presenting expert opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data” and the testimony is the product of reliable principles and methods which the witness has applied reliably to the facts of the case. Pan Am Diagnostics Services, Inc. v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp. 937a (Broward Cty Ct. 2013). In Mr. Sarabi’s affidavit, he does not take into consideration any amount over 200% of Medicare Fee Schedule in concluding that 200% of Medicare is a reasonable charge. Under the new Daubert standard for expert opinions, the proponent of the opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data.” In doing so, Mr. Sarabi relied on undisclosed documentation in support of his opinion. §90.702(1)(2013).
UNITED has failed to rebut STAND-UP MRI’s affidavit as to reasonableness based upon testimony that is the product of reliable principles and methods or based upon sufficient facts or data. As such, UNITED has failed to establish a material fact in dispute sufficient to defeat a Motion for Summary Judgment. UNITED cannot use it’s 200% of Medicare Part B fee schedule unless that amount happens to be a reasonable amount. The underlying documentation in supporting this theory is a necessity and would have to have been presented to the court. It is therefore,
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. Plaintiff shall submit a Final Summary Judgment to the Court.
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