21 Fla. L. Weekly Supp. 1077a

Online Reference: FLWSUPP 2110BBROInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary disposition — Opposing affidavit filed by insurer do not preclude summary disposition 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, workers’ compensation and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge

PALMS MRI DIAGNOSTIC IMAGING CENTERS, INC., as assignee of Burton Brown, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-2473 CONO 73. May 29, 2014. Steven P. DeLuca, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Melissa McDavitt, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY DISPOSITION AS TO PRICE

This cause came before the court, on May 29, 2014, after due notice to the parties, on Plaintiff’s Motion for Summary Disposition. The amount in controversy is $619.70. After review of the pleadings, the affidavits of Mrs. Torres and Mr. Spell, the evidence, the rest of the record, and after hearing argument of counsel for the parties, the court finds no triable issue according to Rule 7.135 issue which was reserved by this court on 5/7/12 and hereby grants Summary Disposition in favor of the Plaintiff and against the Defendant on this issue.

Palms MRI, as assignee of Burton Brown, 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. The Defendant’s policy which is in the record requires the Defendant to pay 80% of all reasonable expenses. The policy does not have a set number as to what it will pay for medical services. In this case, the Plaintiff billed $1,850 for the MRI in question which took place in 2011 in Broward County. 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. The Defendant’s policy does not state it will pay claims based on 200% of medicare specifically or even generally. 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 Palms MRI 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 Disposition 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.

In support of its Motion for Summary Disposition, Plaintiff submitted and timely filed the detailed affidavit of Belkys Torres, Vice President and corporate representative of the Plaintiff.

Mrs. Torres attests Plaintiff’s charges were reasonable, and usual and customary, based on her personal knowledge of PALMS MRI company’s billing practices, office procedures, collection practices, reimbursement trends, and amounts others were charging for similar services in the community. She is responsible for Plaintiff’s billing. She is aware of what many of the other MRI centers charge as well as what the hospitals charge. The Plaintiff’s charge is about the same or less than many MRI centers in the community. She is also aware of what four (4) different publications state is a reasonable range for an MRI and the Plaintiff’s charges are within the range of those publications. She further attests PALMS MRI regularly and consistently received reimbursements of 80% of its charge its charges from No-Fault Insurers who did not apply the permissive 200% Medicare limited reimbursement or adopt same in their policies.

The court finds the affidavit of Mrs. Torres meets the Plaintiff’s prima facie burden to establish the Plaintiff’s charge is within the range of reasonable. See United Auto v. Hallandale Open a/a/o Antoneete Williams, 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. App December 11, 2013) and Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So.2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c]. See also Pan Am Diagnostic Svcs. Inc. a/a/o Fritz Telusma v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. 17th Jud. Cir., October 1, 2013) Judge Lee opined:

A plaintiff’s prima facie showing of the reasonableness of its charges can be established by merely presenting the medical bill produced for the service at issue, along with testimony that the patient received the treatment in question. See A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; Iowa Mutual Nat’l Ins. Co. v. Worthy, 447 So.2d 998, 1000 n.5 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409, 409-10 (Fla. 1st DCA 1979); State Farm Mutual Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (11th Cir. Ct. 2004) (appellate capacity). As noted by the Fourth DCA, “[A] medical bill constitutes the provider’s opinion of a reasonable charge for the services.” A.J., 677 So.2d at 937. In the alternative, a plaintiff may also present lay testimony from a fact witness with firsthand knowledge as to why the charge for the service was set at the rate at which it was billed. Multicare, 12 Fla. L. Weekly Supp. at 33a. A plaintiff may, but is not required to, produce an expert witness to establish the reasonableness of its charges. Sea World of Florida. Inc. v. Ace American Ins. Co., Inc., 28 So.3d 158, 160 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So.2d 1122, 1123 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]; A.J., 677 So.2d at 937-38; East West Karate Assn, Inc. v. Riquelme, 638 So.2d 605, 605 (Fla. 4th DCA 1994); Multicare. 12 Fla. L. Weekly Supp. at 33a; Kompothrecas v. Progressive Consumers Ins. Co., 8 Fla. L. Weekly Supp. 505a, 506 (Sarasota Cty. Ct. 2001).

Pursuant to Rule 7.135 the Plaintiff would be entitled to summary disposition if there is no triable issue. See United Auto v. Hallandale Open a/a/o Antoneete Williams, FLWSUPP 2105WILL (Fla. 17th Cir. Court 2013) [21 Fla. L. Weekly Supp. 399d]. The Defendant may not defeat a motion for Summary Disposition 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 that Palms MRI met its burden of establishing the reasonableness of the MRI charge based on the affidavits of Mrs. Torres which explains why $1850 is a reasonable charge for an MRI conducted in 2011 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 triable issue as to the reasonableness of the charge for the Plaintiff’s MRI. The affidavit of Mr. Spell stating the billed amount is unreasonable is conclusory, based on inadmissible hearsay and lacks foundation or the basis for his opinion that the amount charged was unreasonable. There were no applicable documents attached to his affidavit other than explanation of review and the bill.

The Plaintiff filed a deposition and affidavit of Mr. Spell establish that Mr. Spell could not provide the court with the data even if ordered to do so by the court. The affidavit of Mr. Spell filed by the Plaintiff states the costs associated with producing the underlying data would be between $6,000 and $12,000.

A conclusory affidavit of a party is insufficient to create a disputed issue of fact. Master Tech v. Mastec, 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 or summary disposition 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), Broward Rehab Center a/a/o Meloche, v. State Farm, Case number 12-007151 COCE 56 (Fla. Broward County Court 2014, Judge Pratt). 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 2011, an analysis of how he arrived at his opinions, and he did not attach any of the documents he relied upon.

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. Therefore, his affidavit is legally insufficient.

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 (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 or an in-network health insurers 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 triable issue 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 triable issue that the Plaintiff’s charge was unreasonable. 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, 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, etc. allow would require the improper stacking of inferences as Medicare and Medicaid 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 Medicare workers compensation, and health insurance pay less than the billed amount there is a triable issue 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.

Finally, State Farm’s reliance on Medicare is not persuasive as Medicare is not insurance. Medicare is social welfare. 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, Hallandale Open MRI’s Motion for Summary Disposition as to price is hereby granted for the reasons set forth above and the reasons argued at the hearing.

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