21 Fla. L. Weekly Supp. 432b
Online Reference: FLWSUPP 2105DCADInsurance — Personal injury protection — Expert witness — Insurer’s actuary is qualified to render opinion on reasonableness of charges where proposed witness has worked in insurance industry consulting with numerous medical providers and is familiar with reimbursement levels in area where medical provider is located — Insurer may challenge medical necessity of treatment at any time, including after payment of claim — Affidavit citing errors and deficiencies in documentation of claimed services creates questions of fact as to necessity of treatment
HOMESTEAD CHIROPRACTIC CLINIC, INC., (DARLINE CADET) Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-9197 SP 23. January 21, 2014. Charles K. Johnson, Judge. Counsel: Vincent Rutigliano, Rosenberg & Rosenberg, P.A., for Plaintiff. David Bender, Matt Hellman, P.A., for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on November 18, 2013 on Plaintiff, HOMESTEAD CHIROPRACTIC CLINIC, INC. (a/a/o DARLINE CADET), Motion for Summary Final Summary Judgment, and the Court having reviewed the motion, having heard argument of counsel, having reviewed relevant legal authority, and being sufficiently advised in the premises, finds as follows:Background
This lawsuit arises out of a breach of contract action for Personal Injury Protection (“PIP”) Benefits regarding chiropractic treatment rendered by the Plaintiff. On April 18, 2013, Plaintiff filed its Motion for Final Summary Judgment as to the issues of whether the treatment was reasonable, related, and medically necessary. On November 11, 2013, Defendant filed the Affidavits of Darrell Spell and Michael Mathesie, D.C. in opposition to Plaintiff’s Motion for Final Summary Judgment. Mr. Spell’s affidavit deals with the issue of reasonableness and Dr. Mathesies’s affidavit deals with the issue of medical necessity. Defendant has conceded the issue of relatedness and therefore Plaintiff’s motion is GRANTED as to that issue.Conclusions of Law
Plaintiff contends that Mr. Spell is not qualified to testify as to the reasonableness of the charges as he fails to meet the new “Daubert” standard under Florida Statutes §90.702 which states the following:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1)The testimony is based upon sufficient facts or data;
(2)The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
The Florida legislature intended to “prohibit in the courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So.2d 562 (Fla. 2007) [32 Fla. L. Weekly S750a].” See Florida House Bill 7015 (2013). The Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), held that such testimony was admissible only if the testimony is both relevant and reliable; and that the trial judge must serve as gatekeeper, insuring that an expert’s testimony rests on a reliable foundation and is relevant.
Plaintiff’s objects to the admissibility and admission into evidence of Mr. Spell’s affidavit on the basis that the proffered testimony is conclusory, self serving, legally insufficient, and that Mr. Spell does not qualify as an expert in regards to the reasonableness of charges. Plaintiff also objects to Mr. Spell’s affidavit on the following grounds: comparing PPO and HMO rates where there is no evaluation of non-monetary other considerations (no examinations under oath, independent medical examinations, peer reviews, electronic billing, less paper work, list of approved centers, flow of business, no 35 day limit to bill, guaranteed payment); no valid statistical survey of changes in the geographical area; no understood and accepted meaning of “reimbursement levels;” no trade organizations that police these “experts;” no tests designed to qualify a “reasonableness” expert; no methodology generally accepted for peer review of these opinions; no consideration of any payors that pay the Plaintiff’s bill without reduction, and that Mr. Spell has no personal knowledge of the methods used.
Defendant argues that Mr. Spell’s affidavit is sufficient under Daubert, and that any questions relating to the basis and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration, and that it is the role of the adversarial system, not the Court to highlight weak evidence. See Taylor v. Novartis Pharmaceutical Corp., 2013 WL 85168 (S.D. Fla. 2013).
Mr. Spell’s affidavit states that he has been working in the area of health insurance since 1982, he is experienced in estimated cost levels and the pricing of medical long term care, Medicare supplement, critical illness, and other supplemental products, and he provides clients nationwide with rate filing support. Mr. Spell has provided actuarial support for pricing and costs analysis of medical services for Blue Cross Blue Shield Association and various member plans and major life insurance companies. Mr. Spell has assisted major insurance companies with determining the appropriate amount to charge for insurance premiums (indicating that he has reviewed payments for many different medical treatments). Mr. Spell is familiar with payments accepted by providers for medical services in the entire United States market for health services and in the Florida market, including Miami-Dade and Broward counties. Mr. Spell states that he is familiar with reimbursement levels in the zip code 33030, which is the zip code where the Plaintiff is located.
Under Daubert, the test of reliability is “flexible” and the list of specific factors neither necessarily nor exclusively applies to all experts or in every case. The Court finds that Mr. Spell’s thirty years of experience of working in the insurance industry consulting with numerous medical providers, and his familiarity with the reimbursement levels is sufficient to meet the Daubert standard. Therefore, Plaintiff’s Motion to for Final Summary Judgment as to reasonableness is DENIED.
Plaintiff contends that Defendant has waived its right to contest the medical necessity of the treatment pursuant to Florida Statutes 627.736(4)(b). Plaintiff argues that the affidavit of Dr. Mathesie is indicating that there is an error in the claim and therefore the Defendant had to notify Plaintiff of said error at the time of the partial payment. Plaintiff also argues that Dr. Mathesie is not talking about medical necessity and that the reasons for not finding the treatment medically necessary are based solely on his finding that the documentation is insufficient. Defendant argues that pursuant to the plain language of Florida Statutes 627.736(4)(b), the assertion by the insurer that the treatment is not medically necessary may be made at any time, including after payment of the claim. Defendant also cites to Partners in Health Chiropractic (a/a/o Neocles Lebrun) v. United Automobile Ins. Co., 21 So.3d 858 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a]; United Automobile Ins. Co. v. Liliu Perez, 21 So.3d 886 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2267a]; United Automobile Ins. Co. v. A 1st Choice Healthcare Systems, 21 So.3d 124 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2268a]; and United Automobile Ins. Co. v. Santa Fe Medical Center (a/a/o Telmo Lopez), 21 So.3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. Defendant also argues that improper documentation goes to the issue of medical necessity based upon the standard jury instructions and Florida Statutes 627.732(2) which defines medical necessity as:
“Medically necessary” refers to a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is:
(a) In accordance with generally accepted standards of medical practice;
(b) Clinically appropriate in terms of type, frequency, extent, site, and duration; and
(c) Not primarily for the convenience of the patient, physician, or other health care provider.
Defendant also cites to State Farm Mutual Automobile Ins. Co. v. Twyman E. Bowling, 81 So.3d 538 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D379a] for the proposition that whether the bills submitted by a medical provider accurately reflect the care documented in the medical records is directly relevant to whether the treatment is medically necessary.
The Court agrees with Defendant’s arguments. Dr. Mathesie’s affidavit states that CPT code 99204(25) submitted on June 17, 2008 failed to document the required elements and therefore was not performed in accordance with generally accepted standards of medical practice and not in a manner that was clinically appropriate. This creates a question of fact for the jury as to CPT code 99204(25) submitted on June 17, 2008.
Dr. Mathesie’s affidavit states that CPT code 97012 was submitted on August 13, 2008, however the records indicate that the claimant did not receive the service. It is his opinion that services submitted for reimbursement but not actually performed is not in accordance with the generally accepted standards of medical practice. This creates a question of fact for the jury as to CPT code 97012 submitted on August 13, 2008.
Dr. Mathesie’s affidavit states that CPT code 97035 failed to document the extent or duration of the treatment and therefore was not performed in accordance with generally accepted standards of medical practice and not in a manner that was clinically appropriate. This creates a question of fact for the jury as to CPT code 97035 on all dates of service submitted.
Dr. Mathesie’s affidavit states that CPT codes 98940, 97035, 97014, 97012, and 97010 were submitted for two units on July 21, 2008. It is his opinion that the records fail to indicate that any of these services were performed for the required time to attempt to substantiate the two units submitted and therefore the second units are not medically necessary. This creates a question of fact for the jury as to the second unit for CPT codes 98940, 97035, 97014, 97012, and 97010 on July 21, 2008.
Dr. Mathesie’s affidavit states that CPT code 99214(25) submitted on October 3, 2008 failed to document the required elements and therefore was not performed in accordance with generally accepted standards of medical practice and not in a manner that was clinically appropriate. This creates a question of fact for the jury as to CPT code 99214(25) on October 3, 2008.
Dr. Mathesie’s affidavit finds that no treatment at all can be considered medically necessary past September 5, 2008 based on the claimant already having received nearly twelve weeks duration of treatment for the documented soft tissue sprain/strain injury, based on the examination performed by the Plaintiff on this date, there were no longer any positive orthopedic tests and no longer any sensory changes, and therefore an end result would have been reached by September 5, 2008. This creates a question of fact for the jury as to all treatment after September 5, 2008.
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