21 Fla. L. Weekly Supp. 811a
Online Reference: FLWSUPP 2108BUTLInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of MRI charge where affidavit is conclusory and lacks foundation, and affiant is 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
MILLENNIUM RADIOLOGY, LLC, d/b/a MILLENNIUM OPEN MRI, as assignee of Mary Butler, Plaintiff, vs. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-008891 CONO 70. May 5, 2014. John D. Fry, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Mark Rose, for Defendant.
ORDER GRANTING PLAINTIFF’SMOTION FOR SUMMARY JUDGEMENT
This cause came before the court, on May 5, 2014, after due notice to the parties, on Plaintiff’s Motion for Summary Judgement relative to whether the charge of $2150 was reasonable for the lumbar MRI without contrast (CPT Code 72148). The amount in controversy is $738.72. After review of the pleadings, the affidavit of Ms. Kahana and Mr. Spell, the evidence, the Plaintiff’s request for admissions and Defendant’s responses (any request for admissions that were not responded to have been deemed admitted), the rest of the record, and after hearing argument of counsel for the parties, the court finds no genuine issue of material fact according to Rule 1.510 issue and hereby grants Summary Judgement in favor of the Plaintiff and against the Defendant on this issue for this CPT code.
The Plaintiff, Open MRI, sued State Farm Mutual Automobile Insurance Company (herein after State Farm) for breach of a contract of personal injury protection benefits under the Florida No Fault law in Small Claims Court. It is undisputed the Defendant’s policy requires the Defendant to pay 80% of all reasonable expenses. See Defendant’s explanation of review which is in the record. The policy does not have a set number as to what it will pay for medical services. Thus, reasonable is a range. In this case, the Plaintiff billed $2150 for the MRI in question which took place in 2012 and argues its charge is within the range of what is reasonable.
State Farm Mutual received the bill and paid based on 80% of 200% of Medicare part B, 2007 and not 80% of the billed amount. See the Defendant’s explanation of review. There is no record evidence the Defendant specifically considered any factors other than the 2007 Medicare Part B fee schedule. It is undisputed the Defendant’s policy does not state it will pay claims based on 200% of medicare. Nor is it an affirmative defense that the Defendant will pay medical bills based on the fee limitations found in §627.736(5)(a)(2).
The amount tendered by the Defendant was not accepted as payment in full by the Plaintiff who, after serving a demand letter, sued State Farm Mutual Auto for breach of contract for the balance. The Defendant filed an answer and the Defendant alleged it paid an appropriate and allowable amount. The Defendant did not plead the Plaintiff’s charge was unreasonable.
The matter is ripe for Summary Judgement as there are no pending motions to strike, to supplement the record, and there has been sufficient time to complete reasonable discovery. The court considered all arguments made by counsel in ruling on this matter.
The Plaintiff moved for Summary Judgement based on a detailed and competent affidavit of Ms. Kahana, an owner of the Plaintiff, who, based on substantial showing, avers that the amount of Plaintiff’s charge of $2150 is reasonable. Ms. Kahana has personal experience and knowledge of the MRI industry and what is a reasonable charge for an MRI. She is aware of what other MRI centers charge, what the Plaintiff has been paid, and she has relied on four (2) different publications to confirm the Plaintiff’s charge is within the range of what is reasonable. The court finds the affidavit of Ms. Kahana and the Defendant’s responses to Plaintiff’s request for admissions which establishes not only what many other MRI centers charge but what State Farm has allowed meets the Plaintiff’s prima facie burden to establish the Plaintiff’s charge is within the range of reasonable. 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 Judgement if there is no genuine issue of material fact. The Defendant may not defeat a motion for Summary Judgement 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 Plaintiff met its burden of establishing the reasonableness of the MRI charge based on the affidavit of Ms. Norma Kahana which explains why $2150 is a reasonable charge for an MRI conducted in 2012 in Broward County and the Defendant’s responses to Plaintiff’s request for admissions. Since the Plaintiff met its burden, the burden now shifts to the Defendant to establish a genuine issue of material fact.
The court finds State Farm Mutual Auto did not meet its burden to establish a genuine issue of material fact as to the reasonableness of the charge for the Plaintiff’s MRI. 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. There were no admissible documents attached to his affidavit. A conclusory affidavit of a party is insufficient to create a disputed issue of 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. There is a long list of county court judges that refuse to consider Mr. Spell’s affidavit sufficient to defeat either Summary Judgment on the issue of price including the appellate decision of State Farm v. Imaging Center of Pensacola, Circuit Case number 2012-AP-000052 (Fla. 1st Circuit Court 2014). This court agrees with the other judges.
Mr. Spell’s affidavit fails to include a 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, what PIP insurers pay when the insurer pays based on a reasonable amount, what out of network health insurers pay, 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 other than exhibit 1 which was a hearsay summary of the Marketscan Research data base that was constructed by another entity known as “Truven.”
Mr. Spell’s affidavit makes it clear he has never worked for an MRI company, billed for an MRI company, or been hired by an MRI company. Mr. Spell’s experience lies in assisting insurance companies, including health insurance companies, to estimate costs to price premiums for coverage and for the expected utilization of services. His affidavit does not mention data relative to MRIs.
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. Mr. Spell’s knowledge of what certain payors pay for MRIs does not make him qualified to state a billed amount is unreasonable. 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. As such, he will be considered as a lay witness by this court. 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 not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702). As a lay witness, the only information Mr. Spell provides is his knowledge of reimbursement levels by the payors mentioned in his affidavit. He cannot provide an ultimate opinion as to whether the Plaintiff’s charge is reasonable. His opinion as to what is a reasonable payment is not relevant as the issue is whether the charged amount is within the range of what reasonable.
The Defendant is not permitted to invoke the payment limitations of §627.736(5)(a)(2) without complying with the provisions of Kingsway v. Ocean Health, 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] as §627.736(5)(a)(2) is a payment limitation.
The fact that the PIP statute has a limitation of 200% of medicare under F.S. §627.736(5)(a)(2) is irrelevant as the Defendant has not alleged it paid pursuant to §627.736(5)(a)(2) and 200% of medicare is not a factor to consider within F.S. §627.736(5)(a)(1) which has specific factors. Likewise, whether the Defendant paid a reasonable amount is not an issue for consideration for the jury as the Plaintiff has the burden to prove its charge is reasonable. The Defendant does not have to prove it paid a reasonable amount. The Plaintiff must prove its charge is within the range of what is reasonable. Reasonable is not a set number.
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]. Had the legislature wanted every medical bill be determined by a jury where the provider charged more than Medicare, workers compensation, New Jersey then the legislature would have expressly done so. The purpose of the no fault scheme is to provide swift and virtually automatic payment so that the injured may get on with his life without undue financial interruption. Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla. 2000) [25 Fla. L. Weekly S1103a]; Nichols v. State Farm, 851 So.2d 742 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1404a]; United v. Stat Technologies, 787 So.2d 920 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D1237b], Government Employees v. Gonzolez, 512 So.2d 269 (Fla. 3d DCA 1987); Allstate v. Holy Cross Hospital, 32 Fla. L. Weekly S453a (Fla. 2007); USAA Casualty Insurance Co. v. Shelton, 932 So.2d 605 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1798a].
Thus, based on Mr. Spell’s affidavit there is simply no competent admissible evidence to create a genuine issue of material fact that the charged amount was unreasonable. The fact that Medicare, Workers Compensation, etc., allows less than the amount billed by the Plaintiff in this case, by itself, is not sufficient to create a genuine issue of material fact that the Plaintiff’s charge was unreasonable. The Defendant simply fails to dispute the allegation the charged amount is reasonable and vague references based on Mr. Spell’s observation that prevailing reimbursement rates are in the range of 80% to 140% of Medicare PFS payments of payors specifically selected by Mr. Spell cannot create a question of fact. See Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D2650b]. The Defendant’s affidavit fails to set forth a valid basis to explain why the Plaintiff’s charge is unreasonable simply because Medicare, workers compensation, New Jersey, etc. pays less.
State Farm Mutual has not rebutted this evidence in the record or offered any proof that the charge is unreasonable, other than the self serving conclusory affidavit of Mr. Spell. Finding the Plaintiff’s charge is unreasonable based on what Medicare, Medicaid, Workers Compensation, New Jersey etc. allow 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. While this court will draw all possible reasonable inferences of material fact in favor of the Defendant, this court cannot find the inference that since the payors selected by Mr. Spell such as Medicare, workers compensation, New Jersey, Medicaid, etc. pay less than the billed amount there is a genuine issue of material fact as to what is a reasonable charge. This would not be a reasonable inference to the exclusion of any other reasonable inference based on this record. Nor will this court allow Mr. Spell interpret Florida law.
Finally, Mr. Spell’s reliance on Medicare is not persuasive as Medicare is not insurance. It is regarded social welfare as Medicare does not change its premiums based on risk. See Atkins v. Allstate, 382 So. 2d 1276 (Fla. 3d 1980) where the court held:
But the basic fact is that Medicare is a social welfare program and not an insurance or reimbursement plan within the everyday and ordinary meaning of these terms. Medicare was added to the existing Social Security laws in 1965 and as yet there have been few, if any, judicial decisions defining its scope.
In the appellate decision of Hialeah Medical Assoc a/a/o Lexcano v. United Auto, 12-229 (Fla. 11th Cir. App. Court 2014) [21 Fla. L. Weekly Supp. 487b] the court held “Medicare fee schedules are not relevant in PIP cases, and should not be used.”
Accordingly, the Plaintiff’s Motion for Summary Judgement is hereby granted for the reasons set forth above and the reasons argued at the hearing.
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