21 Fla. L. Weekly Supp. 820a
Online Reference: FLWSUPP 2108MEJIInsurance — Personal injury protection — Coverage — Medical expenses — Examination under oath — Failure to attend — Partial summary judgment is entered in favor of medical provider as to EUO no-show defense for all dates of service — Reasonableness, relatedness and necessity of treatment — Summary judgment — Opposing affidavit does not preclude entry of summary judgment in favor of provider on issue of reasonableness, relatedness and necessity of treatment where affidavit is conclusory and speculative, affiant relies on undisclosed underlying data, and affiant bases opinion as to some dates of service on insufficient record keeping, which is not lawful basis for nonpayment of PIP benefits
MARTINEZ CHIROPRACTIC CENTER, INC., a/a/o Camilo Mejia, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO05-04184(70). April 22, 2014. John D. Fry, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Gregory Blackburn, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’SMOTION FOR ENTRY OF FINAL JUDGMENT
THIS CAUSE having come on to be heard on March 05, 2014, on Plaintiff’s Motion for Entry of Final Judgment and the Court having heard argument of counsel, having reviewed the Court file, and being otherwise advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED as follows:BACKGROUND:
1. This more than 8-year-old small claims case arises out of a claim for unpaid personal injury protection benefits in the amount of $3,812.76.
2. Camilo Mejia was involved in an automobile accident on February 26, 2003 — 11 years ago.
3. Camilo Mejia was covered under a policy of insurance issued by the Defendant, United Automobile Insurance Company, and this policy of insurance was in full force and effect on the date of loss.
4. As a result of the injuries that Camilo Mejia sustained in this automobile accident, he sought medical treatment at the Plaintiff’s chiropractic facility from March 03, 2003 through July 11, 2003.
5. Plaintiff timely submitted its bills for these dates of service to the Defendant, but Defendant chose not to pay 80% of the amount billed.
6. Plaintiff filed its Complaint on or about October 19, 2005 — 101 months or 3,058 days ago.
7. Defendant filed its initial Answer and Affirmative Defenses on or about March 16, 2006, which raised two affirmative defenses: (1) EUO no-show and (2) defective demand letter.
8. On July 12, 2006, the Court, after a hearing, entered an order striking Defendant’s affirmative defenses.
9. On July 13, 2006, Defendant filed its Amended Answer and Affirmative Defense, which raised one affirmative defense: (1) EUO no-show.
10. On October 23, 2006, an Order was entered granting Plaintiff’s motion for partial summary judgment on the EUO no-show defense for “bills submitted by Plaintiff up until the date of the no-show, June 4, 200[3].”
11. On June 21, 2010 — 1,353 days ago — Plaintiff filed its notice for jury trial.
12. On May 14, 2013 — 295 days ago — the Court entered its notice of trial conference indicating that a trial would take place within 60 days of the pretrial conference, which was held on June 07, 2013.
13. Despite the fact that this case had already been pending for more than 8 years, the Court allowed Defendant additional time to engage in discovery and take depositions.
14. Multiple hearings were also held primarily on Defendant’s requests pertaining to discovery responses.
15. On October 23, 2013, Plaintiff filed a renewed notice for jury trial.
16. On January 31, 2014, this Court entered a trial order setting the trial date for April 01, 2014.
17. On February 10, 2014, Plaintiff filed its motion for entry of final judgment, which was accompanied by the affidavit of Dr. Martinez.
18. On February 14, 2014 — 3,040 days after this lawsuit was filed but hours prior to taking Dr. Martinez’s deposition — Defendant filed its Motion to File Amended Answer.
19. Specifically, Defendant attempted — after nearly 11 years of investigating and working on this claim — to add five brand new affirmative defenses all of which pertain to the purported inadequate record keeping by the Plaintiff in this case. The Defendant has been aware of these purported defenses for more than a decade, but has never sought to make them an issue in this case.
20. On February 26, 2014 — 3,883 days after treatment concluded and 12 days after Plaintiff filed its motion for entry of final judgment — Defendant obtained a peer review from Dr. Marvin Merrit, D.C. It is apparent that Defendant never addressed the medical necessity or relatedness of the Plaintiff’s treatment prior to this date.
21. On March 03, 2014, exactly two business days before the hearing on Plaintiff’s motion, Defendant pursuant to Rule 1.510(c) hand delivered a copy of the affidavit of Dr. Marvin J. Merrit, D.C. to Plaintiff’s counsel.
22. On March 05, 2014, more than 20 days after Plaintiff served its motion and in compliance with Rule 1.510(c), the Court held a hearing on Plaintiff’s motion, which involved more than 3 hours of argument from both sides.
23. Despite the length of time this case has been in litigation and the numerous opportunities to conduct additional discovery allowed by the Court, Defendant still argued that discovery had not been completed even though Defendant failed to act diligently in obtaining all necessary discovery over the more than 8 years of litigation.1
ANALYSIS AND CONCLUSIONISSUE RE: EUO NO-SHOW
24. As indicated above, on October 23, 2006, an Order was entered granting Plaintiff’s motion for partial summary judgment on the EUO no-show defense for “bills submitted by Plaintiff up until the date of the no-show, June 4, 200[3].”
25. Since the October 23, 2006 Court Order was entered, the Florida Supreme Court has ruled on this exact issue.
26. In Nunez v. Geico General Ins. Co.,2 the Florida Supreme Court held that “EUO conditions are invalid as contrary to the terms of section 627.736.” The Court reasoned that “enforcement of EUO conditions to delay or deny benefits negates statutory PIP protection and is invalid.”3
27. Based on this Court’s inherent authority to reconsider and modify or retract its interlocutory orders such as an order granting partial summary judgment,4 this Court hereby grants Plaintiff’s motion for partial summary judgment as to the EUO no-show affirmative defense for all dates of service at issue in this lawsuit.ISSUE RE: RRN
28. Under Fla. Stat. §627.736(1)(a), the insurer must provide medical benefits to the insured so long as such benefits are for reasonable, related, and necessary remedial treatment.
29. In support of its Motion for Entry of Final Judgment, the Plaintiff relied on the sworn affidavit from Dr. Damian Martinez, D.C., in which he testified under oath to what he did as far as treating Camilo Mejia; that the treatment rendered to Camilo Mejia was reasonable, necessary, and related to the automobile accident of February 26, 2003; and that each of charges for the CPT codes at issue in this case were reasonable, usual and customary.
30. The Court finds that the affidavit filed in support of Plaintiff’s Motion for Entry of Final Judgment is legally sufficient for Plaintiff to meet its burden of proof thereby shifting the burden to Defendant to demonstrate the existence of a genuine issue of material fact.
31. It is well-settled law in Florida that the party seeking to contest an expert opinion must either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence.1
32. In this case, the Defendant relied on a sworn affidavit from Dr. Marvin J. Merrit, D.C.; the deposition transcript of the claimant’s mother, Milagros Roxanna Bruget taken on March 08, 2011; the deposition transcript of the responding police officer, Perla Ramos taken on January 27, 2011; and the deposition transcript of the adverse driver, Norman Lindo taken on January 27, 2011. After carefully weighing the evidence, it is this Court’s judgment that none of these documents created a genuine issue of material fact sufficient to defeat the Plaintiff’s motion.
Sufficiency of Dr. Marvin Merrit’s Affidavit
33. The Court finds that Dr. Marvin Merrit’s affidavit was self-serving and conclusory and based on the well-settled law in Florida, not legally sufficient to defeat entry of final judgment.
34. Moreover, Dr. Merrit’s affidavit is insufficient because it does nothing more than paste the entire content of Dr. Merrit’s inadmissible5 peer review report verbatim into the body of the Affidavit.
35. In that same regard, none of the attached exhibits or documents filed in opposition to Plaintiff’s motion were sworn to or certified. Any writing offered into evidence should be accompanied by competent proof showing its genuineness, pursuant to Fla. Stat. § 90.901. Bifulco v. State Farm Ins., 693 So. 2d 707 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1325a]. Moreover, Fla. R. Civ. P. 1.510(e) by its very language excludes from consideration on a motion for summary judgment, any document that is not one of the enumerated documents or is not a certified attachment to a proper affidavit. Id. See also Nichols v. Preiser, 849 So. 2d 478 (Fla. 2nd DCA 2003) [28 Fla. L. Weekly D1671a](holding that simply attaching documents that are not sworn to or certified to a motion for summary judgment does not satisfy the procedural requirements of Rule 1.510(e)). Although all of the exhibits and documents attached to the affidavit of Dr. Marvin Merrit, D.C., filed by the Defendant, were not sworn to or certified, and therefore should not be considered by this Court, their legal insufficiency was not the basis for this Court’s ruling. If it was, this Court, in compliance with the current state of the law,6 would have allowed the Defendant to amend its legally insufficient affidavit.
36. The Court finds that the Defendant failed to either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence that creates a direct conflict with the proponent’s evidence.
Reasonableness of Charges
37. With respect to the reasonableness of the amounts charged in this case, Dr. Merrit included a table in his affidavit indicating the charged amount and a separate column indicating the “RVU Fee” amount. Dr. Merrit states that his “review is based upon the Relative Value Units (RVU) as reported in several data bases for the Miami, Florida region for the year 2005.”
38. However, Dr. Merrit’s affidavit fails to specifically identify the databases that he relies upon and his report is conclusory in that Dr. Merrit fails to provide facts to support his opinions regarding the prices charged by the Plaintiff.7
39. In his affidavit, Dr. Merrit sets forth no explanation as to why the Court should find that the undisclosed databases he relies upon are sufficiently reliable for the Court to allow this issue to go to trial.
40. This Court is mindful of the amendments to the Florida expert opinion law and the fact that a party faces a greater burden in presenting an expert opinion than it did under the former law. Under the new law, the proponent of the opinion must demonstrate to the Court that the expert’s opinion is “based upon sufficient facts or data.” The Defendant did not meet its burden in this case because Dr. Merrit either relied exclusively on undisclosed “underlying data,” which the Defendant chose not to produce or make available for inspection, or Dr. Merrit relied on data that was facially unreliable.8
41. Defendant failed to demonstrate to this Court that Dr. Merrit’s affidavit testimony was based upon sufficient facts or data, nor that the testimony was the product of reliable principles and methods.
42. For the reasons stated above, Defendant has not come forward with any admissible evidence refuting Plaintiff’s evidence that its charges at issue in this case were “reasonable”.
43. As Judge Lee illustrated in Pan Am Diagnostic Services, Inc. (a/a/o Demetrius A. Sears) v. United Auto. Ins. Co.,9 under Rule 1.510(e), a court may only consider evidence at a summary judgment hearing that would be admissible in evidence. As such, since under the facts and circumstances of this case, Dr. Merrit would be unable to testify as an expert at trial pertaining to the issue of reasonableness, his proffered expert opinion in this regard cannot be considered by this court at a summary judgment hearing.
44. Also pertaining to the issue of the reasonableness of the charges in this case, Dr. Merrit’s affidavit failed to make a specific finding that the charges in this case were unreasonable. In his chart, Dr. Merrit makes a recommendation of what he believes should be reimbursed, but he fails to state that the amount charged by Plaintiff is unreasonable. Without a specific finding that the charges were unreasonable, Defendant has no evidence to contradict Dr. Martinez’s affidavit specifically stating that each amount charged in this case was reasonable.
45. The issue as it relates to the element of reasonableness in PIP cases is whether the Plaintiff’s charged amount is reasonable, not whether some other amount may also be reasonable.10
46. Interestingly, the Court notes that Dr. Marvin Merrit gave no opinion as to the reasonableness of Plaintiff’s charge for CPT Code 99203 and with respect to CPT codes 99204, 99213, 98940, 97140, and 99212, the “RVU Fee” as indicated in Dr. Marvin Merrit’s affidavit is actually more than 80% of Plaintiff charges for these CPT codes.
Dates of Service Prior to April 16, 2003
47. In Dr. Marvin Merrit’s affidavit, he testified under oath that “In reviewing the provider’s medical records, taking into consideration the provider’s diagnosis, and this reviewer’s experience in treating patients with similar conditions and complaints, it is this reviewer’s opinion that injuries such as those sustained by the patient would tend to resolve within four weeks with treatment. It is this reviewer’s opinion that chiropractic care beyond 4/16/03 (the reported date of a re-evaluation) would not be reasonable, related or medically necessary.” (Emphasis added to the word “tend”).
48. Dr. Merrit’s opinions pertaining to the issues of reasonable, related or medically necessary for dates of service prior to April 16, 2003 are based on the notion of insufficient record keeping on the part of Dr. Martinez, which this Court does not recognize as a lawful basis for nonpayment of PIP benefits.11
49. This Court is mindful of the 17th Circuit Court’s decision sitting in its appellate capacity, State Farm Fire and Casualty v. Central Magnetic Imaging Open MRI of Plantation, Ltd., (a/a/o Evelyn Deshommes),12 and specifically finds that Defendant raised insufficient record keeping as a basis for nonpayment “without offering anything more”.
50. As such, Defendant did not either present countervailing expert testimony, severely impeach Dr. Martinez’s affidavit, or present other legally sufficient evidence which creates a direct conflict with Dr. Martinez’s affidavit; therefore, the Court finds that all treatment rendered from March 03, 2003 through April 16, 2003 was related and medically necessary.
Dates of Service After April 16, 2003
51. As indicated above, Dr. Marvin Merrit testified under oath, by way of affidavit, that “In reviewing the provider’s medical records, taking into consideration the provider’s diagnosis, and this reviewer’s experience in treating patients with similar conditions and complaints, it is this reviewer’s opinion that injuries such as those sustained by the patient would tend to resolve within four weeks with treatment. It is this reviewer’s opinion that chiropractic care beyond 4/16/03 (the reported date of a re-evaluation) would not be reasonable, related or medically necessary.” (Emphasis added to the word “tend”).
52. Based on the language of the affidavit, this Court finds that this conclusory and self-serving statement is speculative and is not sufficient to defeat summary judgment since it fails to create a “genuine issue” of material fact.
53. Additionally, Dr. Merrit’s opinions pertaining to the issues of reasonable, related or medically necessary for dates of service April 16, 2003 through July 11, 2003 are based on the notion of insufficient record keeping on the part of Dr. Martinez, which, as mentioned above, this Court does not recognize as a lawful basis for nonpayment of PIP benefits.
54. As such, Defendant did not either present countervailing expert testimony, severely impeach Dr. Martinez’s affidavit, or present other legally sufficient evidence which creates a direct conflict with Dr. Martinez’s affidavit; therefore, the Court finds that all treatment rendered from April 16, 2003 through July 11, 2003 was related and medically necessary.
55. Based on the above findings, and after the Court having thoroughly reviewed the matter and having been otherwise fully advised in the premises, the Court finds that there are no remaining triable issues outstanding in this matter. As such, final judgment is hereby entered in favor of the Plaintiff.
ORDERED AND ADJUDGED that Plaintiff, MARTINEZ CHIROPRACTIC CENTER, INC., a/a/o Camilo Mejia does have and recover from Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, the sum of $3,812.76, plus prejudgment interest of $2,523.57 for a total sum of $6,336.33, which shall bear interest at the legal rate of 4.75%, for all of which let execution issue.
It is further,
ADJUDGED, that Plaintiff is entitled to reasonable attorney’s fees and costs and this Court retains jurisdiction to determine the amount of same.
__________________
1See e.g., Congress Park Office Condos II, LLC v. First-Citizen Bank & Trust Co., 105 So. 3d 602 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D145a] and the cases cited therein.
2No. SC 12-650 (Fla. 2013) [38 Fla. L. Weekly S440a].
3Id. at p. 15; see also Lewis v. Liberty Mutual Ins. Co., No. 4D12-1554 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D1928a].
4See e.g., Alabama Hotel Company v. J. L. Mott Iron Works, 98 So. 825 (Fla. 1924); Holman v. Ford Motor Co., 239 So. 2d 40 (Fla. 1st DCA 1970); Bettez v. City of Miami, 510 So. 2d 1242 (Fla. 3d DCA 1987); Bay N Gulf, Inc. v. Anchor Seafood, Inc., 971 So. 2d 842, 843 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2535b]; Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998) [23 Fla. L. Weekly S625a]; Commercial Garden Mall v. Success Academy, Inc., 453 So. 2d 934 (Fla. 4th DCA 1984).
1Rose v. Dwin, 762 So. 2d 532, 533 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1083c] (citing Jarrell).
5See McElroy v. Perry, 753 So. 2d 121 (Fla. 2nd DCA 2000) [25 Fla. L. Weekly D111a] (reasoning that “An IME report prepared for the purpose of litigation, lacks the trustworthiness that business records are presumed to have, and therefore, is not admissible under the Business Records Exception.” See also Physician’s First Medical, Inc. v. Granada Ins. Co., 12 Fla. L. Weekly Supp. 776a (11th Cir. Ct., May 9, 2005)(holding that the Affidavit of the insurer’s IME physician and the attached peer review were not competent evidence that gave rise to a genuine issue of material fact because the “affidavit fails to state a proper foundation for the admissibility of his report under an exception to the hearsay rule. It only purports to authenticate his report, which is a document created for the sole purpose of litigation, thus is inadmissible as a business document pursuant to 90.803(6).”); Eduardo J. Garrido D.C., P.A. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 372a (11th Cir. Ct. Jan. 26, 2006) (reasoning that, “Assuming the affidavit of [the IME physician] lays a foundation for admissibility of the peer review, there is no exception under the hearsay rule for its admissibility. The report lacks trustworthiness where it was prepared for the sole purpose of litigation.”).
6See Stephens v. Dichtenmueller, 216 So. 2d 448 (Fla. 1968) (holding that a party should have been afforded at least one opportunity to amend or supplement the affidavit); United Auto. Ins. Co. v. Peter F. Merkle, M.D., P.A. a/ a/o Terry Laray, 32 So. 3d 159 (Fla. 4th DCA 2012) [35 Fla. L. Weekly D620a].
7See Ocean Health, Inc. v. U.S. Security Ins. Co., 13 Fla. L. Weekly Supp. 378b (Broward Cty. Ct. Dec. 19, 2005).
8See Fla. Stat. §§90.702(1) (2013), 90.956 (2013); Rule 1.510(e).
920 Fla. L. Weekly Supp. 937a (Fla. Broward Cty. Ct. 2013).
10See Windsor Imaging a/a/o Roneil Morris v. State Farm Mutual Auto. Ins. Co., 19 Fla. L. Weekly Supp. 215b (Broward Cty. Ct. 2011)(Judge Lee explained that “the issue before this Court is not whether State Farm paid a reasonable amount, rather whether the amount charged for the service at issue was reasonable.”).
11See e.g., State Farm Fire and Casualty Co. v. Central Magnetic Imaging Open MRI of Plantation, Ltd (a/a/o Evelyn Deshommes), 21 Fla. L. Weekly Supp. 239a (Fla. 17th Jud. Cir. (Appellate) 2013) (agreeing with the fact that “Other circuit courts, in their appellate capacity, have noted that a medical expert opinion asserting that a provider’s documentation is deficient without offering anything more does not create an issue of material fact to avoid summary judgment.”); Sevila Pressley Weston v. United Auto. Ins. Co., FLWSUPP 2104WEST (Fla. 11th Jud. Cir. (Appellate) 2013) [21 Fla. L. Weekly Supp. 306b] (explaining that “[i]n order to refute relatedness, United Auto had to present actual and/or factual evidence which would purport to more or less show that the injuries and subsequent medical treatment did not arise out of the subject accident. Alleged deficient recordkeeping cannot satisfy this requirement . . .”); Michael J. Delesparra, D.C., P.A. (a/a/o Joseph Walkens) v. MGA Ins. Co., Inc., 19 Fla. L. Weekly Supp. 854c (Fla. Broward Cty. Ct. 2012) (Judge Lee struck Defendant’s affirmative defense and reasoned that the failure to maintain adequate medical records is not a defense to payment in a PIP case.); Nob Hill Chiropractic (a/a/o Kenrick Grant) v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 195a (Fla. Broward Cty. Ct. 2013) (Judge Cowart granted Plaintiff’s Motion in Limine and reasoned that “since the PIP statute does not specifically provide that inadequate record keeping is a lawful basis for nonpayment, it may not form a lawful basis as to non-payment of the medical charges.”); South Florida Pain & Rehabilitation, Inc. (a/ a/ o Kirt Godfrey) v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 981b (Fla. Broward Cty. Ct. 2009) (Judge Trachman granted Plaintiff’s motion for summary judgment as to RRN and reasoned that “any opinion regarding the adequacy of the records is not germane to the issue of RRN. An alleged failure to maintain adequate records is not a legal basis to support the finding that the medical services were not RRN.”); Dr. Kim Reddick, DC PA (a/a/o Patricia Camblin) v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 487b (Fla. Volusia Cty. Ct. 2012) (Judge Feigenbaum reasoned that an expert affidavit addressing minimal record keeping standards and administrative violations are not relevant to the issue of whether the treatment provided is reasonable, related, or medically necessary.); Right Choice Medical & Rehab. Corp. (a/a/o Martha Alvarez) v. State Farm Fire and Casualty Co., 21 Fla. L. Weekly Supp. 181a (Fla. Miami-Dade Cty. Ct. 2011) (Judge Pando granted final judgment in favor of Plaintiff and followed Judge Trachman’s reasoning that “any opinion regarding the adequacy of the records is not germane to the issue of RRN. An alleged failure to maintain adequate records is not a legal basis to support the finding that the medical services were not RRN.”); Ali v. McCarthy, 17 Fla. L. Weekly Supp. 661a (Fla. Seminole Cty. Ct. 2010) (Judge Simmons granted Plaintiff’s motion for protective order and reasoned that the Defendant does not have standing to assert any violations of any administrative code, regulatory statute, licensing requirements or medical record standards and that such an inquiry into any of this “does not go to the efficacy of treatment, causal connection or reasonableness of the charge and is therefore not reasonably calculated to lead to the discovery of admissible evidence.”).
1221 Fla. L. Weekly Supp. 239a (Fla. 17th Jud. Cir. (Appellate) 2013).
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