21 Fla. L. Weekly Supp. 273a
Online Reference: FLWSUPP 2103BARRNOT FINAL VERSION OF OPINION
Subsequent Changes at 22 Fla. L. Weekly Supp. 835bInsurance — Personal injury protection — Coverage — Medical expenses — Mobile x-rays — Summary judgment is entered for insurer regarding medical necessity of mobile x-rays where insurer presented evidence of absence of documentation that insured was not ambulatory or could not be transferred to stationary x-ray equipment, and medical provider did not present any evidence on medical necessity of mobile x-rays
MILO DIAGNOSTIC CENTER, INC. a/a/o Barreto, Pedro, Plaintiff, vs. STATE FARM FIRE & CASUALTY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-30146 SP 23 (4). Claim No. 59-Z545-880. November 12, 2013. Jason E. Dimitris, Judge. Counsel: Kelly M. Arias, for Plaintiff. Jessica Z. Martin, Roig, Tutan, Rosenberg, Martin & Stoller, P.A., Deerfield Beach, for Defendant.
VACATED. 7-21-2014. FLWSUPP 2207PBAR
ORDER GRANTING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT REGARDING MEDICALNECESSITY AND ENTRY OF FINAL JUDGMENT
THIS matter having come to be heard on November 8, 2013, after due notice to the parties, on the Defendant’s, State Farm Fire & Casualty Company, Motion for Final Summary Judgment Regarding Medical Necessity and the Court having heard argument of counsel and the Court having been otherwise fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED that:
Defendant’s Motion for Final Summary Judgment is hereby granted.
THIS COURT FURTHER FINDS that:
1. The Plaintiff, Milo Diagnostic Center, Inc. a/a/o Pedro Barreto (hereinafter “Milo”), filed suit against the Defendant, State Farm Fire & Casualty Company (hereinafter “State Farm”) to recover Personal Injury Protection (PIP) benefits for mobile x-rays rendered to Pedro Barreto, a State Farm insured.
2. The Defendant, State Farm, answered the Complaint by denying allegations in the Complaint that the mobile x-rays were medically necessary.
3. The Defendant, State Farm, moved for final summary judgment on the issue of the medical necessity of the mobile x-rays. The Defendant’s Motion argues that the subject mobile x-ray services are not “medically necessary” as defined in the Florida PIP Statute, Section 627.732(2) (2006) as 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.
4. In support of its Motion, the Defendant, State Farm, relies upon the deposition of Mr. Don Steiner, Bureau of Radiation Control, Florida Department of Health, who was proffered by the Plaintiff as an expert on the Florida Administrative Code and who explains the intent behind Florida Administrative Code 64E-502(1)(a)(8)(c), which requires that portable or mobile equipment1 shall only be used where it is impractical to transfer the patient to a stationary radiographic location, is so that portable machines, which result in increased radiation to the patient and inferior quality films, are not used on a routine basis.
5. Further in support of its Motion, the Defendant, State Farm, relies upon the Affidavit of Dr. John J. Gentile, D.C., attesting that the portable or mobile x-rays rendered to Pedro Barreto are not medically necessary based on, among other things, that: the medical records do not indicate that portable or mobile x-rays were ordered by the referring physician, Dr. Carla Catalan, D.C.; there is no documented reason in the medical records why it was impractical to transfer Pedro Barreto to a stationary radiographic location; there is no indication in the medical records that Pedro Barreto was not ambulatory; and there is no documented reason why Pedro Barreto could not have been transferred to a stationary radiographic installation. Dr. Gentile points out in the Affidavit that the medical records indicate that Pedro Barreto presented himself to Relief Pain Diagnostic Center; the location where Pedro Barreto allegedly received physical examinations and physical therapy and where the Plaintiff, Milo, brought its mobile x-ray equipment to perform the subject x-rays.
6. The Defendant, State Farm, also relies upon the deposition testimony of Ramiro Gomez, owner of and massage therapist at Relief Pain Diagnostic Center, at the time Pedro Barreto was a patient, who testified that Dr. Catalan was not involved in the decision to use Milo to perform the subject mobile x-rays as it was part of a business agreement between Ramiro Gomez and Milo that Milo would perform x-rays on all of Relief Pain Diagnostic Center’s patients.
7. The Plaintiff, Milo, did not file a written response to the Defendant’s, State Farm, Motion for Final Summary Judgment. At oral argument, the Plaintiff, Milo, relied upon the affidavit of Roy Canizares, D.C., filed prior to the Defendant’s Motion, attesting to the fact that x-rays were medically necessary for the patient Pedro Barreto. The affidavit of Dr. Canizares does not discuss or make mention of the fact that the subject x-ray services at issue in this case are mobile or portable x-rays, and likewise, does not provide an opinion as to the medical necessity of the mobile or portable x-rays.
8. This Court is particularly concerned about the fact that mobile x-rays result in increased radiation to the patient and inferior quality films and is swayed that the Plaintiff, Milo, has failed to come forward with counter competent evidence on the issue of the medical necessity of the mobile or portable x-rays to create a genuine issue of fact.
9. Based upon the foregoing, this Court grants the Defendant, State Farm’s, Motion for Final Summary Judgment Regarding Medical Necessity and hereby enters this Final Judgment.
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1For purposes of this case and oral argument the terms mobile and portable are used interchangeably.
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