21 Fla. L. Weekly Supp. 707b

Online Reference: FLWSUPP 2107SOSSInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary disposition — Opposing affidavits filed by insurer do not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charge where affidavits were conclusory and lacked foundation, and affiants were 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 Deanna Sossin, Plaintiff, vs. STATE FARM MUTUAL AUTO INSURANCE, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-04684 CONO 73. April 17, 2014. Steven P. DeLuca, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Melissa McDavitt, for Defendant.

AFFIRMED. FLWSUPP 2301SOSS

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION

THIS CAUSE came before the Court on April 17, 2014, for hearing on the Plaintiff’s Motion for Summary Disposition pursuant to rule 7.135, and the Court having reviewed the Motion, the entire Court file including Plaintiff’s request for admissions and the Defendant’s responses, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:

The Plaintiff, a medical provider, filed suit because the Defendant did not pay 80% of the billed amount for its services. The Defendant’s policy of insurance required the Defendant to pay 80% of all reasonable expenses (See the affidavit of Margaret Amoroso). The Plaintiff charged $1895 for a lumbar MRI without contrast (see the affidavit of Mrs. Torres). The Defendant paid the Plaintiff $912.74 which is 200% of Medicare Part B from 2007. See the deposition of Mr. Faria filed by the Plaintiff at page 17. The amount in controversy is $603.26 which is the difference between the billed amount and paid amount at 80%.

The Defendant agreed medical necessity and related is not an issue. Thus, the only remaining issue for this court is whether the Plaintiff’s charge was “reasonable” as to price. It is axiomatic that “reasonable” is a range and not a set number. It is undisputed the Defendant did not elect to pay the Plaintiff’s medical bills based on §627.736(5)(a)(2). The Defendant did not plead §627.736(5)(a)(2) as an affirmative defense. Thus, the triable issue is whether the Plaintiff’s charges for the CPT codes at issue is within the range of what is reasonable.

In support of its Motion for Summary Disposition, Plaintiff submitted, and timely filed, the detailed affidavit of Belkys Torres. Mrs. Torres, who is in the MRI and billing field, is familiar with what other MRI centers in the community charge for the same CPT code as she has spoken to other MRI centers and she has seen the bills from many other centers that were named with specificity in her affidavit and those other MRI centers charge about the same as the Plaintiff. She is also familiar with what other PIP insurers allow for the CPT code at issue as she has billed them and has been paid without reduction and provided specific names of those PIP insurers. She also relied of four (4) different publications and the Plaintiff’s charges are within the range of what is reasonable according to these publications.

The Defendant did not file any evidence establishing the billed amount is outside the range of other doctors charge for the same services. The Defendant presented no evidence that PIP insurers did not pay the Plaintiff’s bills without reduction. In fact, the Defendant’s responses to Plaintiff’s request for admissions and the deposition transcript of Mr. Faria, which the Plaintiff relies upon, supports the Plaintiff’s argument as to what other MRI centers charge and what State Farm has allowed.

The Court finds the Plaintiff’s affidavit satisfy Plaintiff’s burden to prove its charges are within the range of what is reasonable for the CPT codes at issue. See United Automobile Insurance Company v. Hallandale Open MRI, LLC (Antonette Williams), Case No. 12-19662CACE (17th Cir. App December 11, 2013) [21 Fla. L. Weekly Supp. 399d] and Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So.2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c].

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, 12-19662 CACE (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 the Defendant is not permitted to pay Plaintiff’s bill based on 200% of Medicare as a matter of law because the Defendant did not plead it, did not argue it was entitled to pay in this manner as a matter of law, and did not make this clear election in its policy of insurance. See GEICO v. Virtual Imaging, 38 Fla. L. Weekly S517a (Fla. 2013) and the affidavit of Margaret Amoroso.

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].

In opposition, Defendant relies upon the affidavit of Margaret Amoroso served on 4/8/14 and the affidavit of Mr. Spell served on February 7, 2014. Ms. Amoroso is the Defendant’s claims adjuster and Mr. Spell is an outside witness hired by the Defendant. Plaintiff argues the Defendant’s affidavits fail to establish a trial issue. This Court agrees with the Plaintiff.

Once a party moving for Summary Disposition presents competent evidence to support its motion for Summary Disposition, that party is entitled to Summary Disposition unless the non-moving party can come forward with competent evidence sufficient to reveal a triable issue. The court will first address Ms. Amoroso’s affidavit and then Mr. Spell’s affidavit.

Ms. Amoroso was not tendered as an expert by the Defendant at the hearing and, if she was tendered as an expert, the court finds she is not competent to be an expert witness according to Fla. Stat. §90.702(1)(2013) as her opinions are not based upon sufficient facts or data. Thus, she must be considered as a lay witness with regard to “reasonableness.” In her affidavit, she explains that she is a licensed adjuster and explain the facts the Defendant “may” consider in determining what is a reasonable amount.

Ms. Amoroso has no experience in the MRI field or in billing. She does not provide any information as to what is a reasonable range for an MRI in Broward. She states she is familiar with “various” federal and state medical fee schedules but only mentions two that “might” be considered. Those are workers compensation and medicare. She further reviewed the New Jersey state fee medical fee schedules. This is not sufficient to create triable issue as the fact that Medicare, Workers Compensation and New Jersey pay less than the billed amount, without more, does not mean the Plaintiff’s charge is unreasonable. In fact, in Hialeah v. United Auto, Case Number 12-229 AP (11th Cir. Appellate Court 2014) the appellate panel stated “Medicare Fee Schedules are not relevant in PIP cases and should not be used.” The amount Medicare pays bares no legitimate relationship to what is a reasonable charge for a medical service.

Ms. Amoroso completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider. Similarly, she excludes consideration of any amounts above 200% of Medicare in reaching her ultimate conclusion that the charged amount was unreasonable. In essence, Ms. Amoroso’s ultimate opinion excludes any data which could cause an increase in the outcome. The court finds Ms. Amoroso is not qualified to opine that the Plaintiff’s charge is unreasonable and that she failed to present any valid evidence to dispute the Plaintiff’s proof that its charge is reasonable. The court finds her affidavit conclusory, self serving and does nothing more than attempt to create a paper issue to defeat Plaintiff’s motion.

Next, the Defendant relies on Mr. Spell. Mr. Spell’s affidavit suffers many of the same defects as Ms. Amoroso. The court finds 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. 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. Mr. Spell cannot overcome Plaintiff’s affidavit simply by stating Medicare, Medicaid, health insurance etc. pays less than the billed amount.

Mr. Spell’s affidavit fails to include any 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, 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.

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. The issue for the jury is not whether the Defendant paid a reasonable amount. Instead, the issue is whether the charged amount is reasonable and as stated above reasonable is a range and not a set number or any deviation of Medicare, Workers Compensation, etc.

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. See the Circuit Appellate Decision of State Farm v. Imaging Center of Pensacola, 2012-AP-000052 (Cir. Court of the First District 2014)

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). Thus, as a matter of law, the opinions offered by Ms. Amoroso and Mr. Spell are not rationally based on their own perception and are not the type of lay opinions which can be relied upon by the Defendant. In addition, conclusory and self serving statements are not adequate to create a triable issue and are insufficient to avoid Summary Disposition.

Further, it is undisputed that Medicare is not insurance. The fact that Medicare, Workers Compensation, health insurance, etc. pay less than the billed amount does not mean the Plaintiff’s charge is unreasonable without any additional evidence. This 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. Health insurers such as HMO and PPOs pay less but they provide the doctors with a flow of business, guaranteed payment and very low risk. Therefore, the fact an HMO or PPO pays less does not mean the Plaintiff’s charge is unreasonable and has no probative value. The Defendant simply fails to explain or justify why 200% of Medicare, without any more evidence, is sufficient to create a triable issue where the Defendant did not make this clear and express election in its policy of insurance.

Pursuant to Fla. Stat. §627.736(5)(a)(1), in determining a reasonable charge, “consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.” Here, Defendant has failed to present competent, admissible evidence to rebut Plaintiff’s prima facie showing that their charge was, in fact, reasonable as reasonable is a range and not a set number.

It is well settled that in order to take advantage of the more limited reimbursement provided by Fla. Stat. §627.736(5)(a)(2)(f), the insurer must specify that method to the exclusion of any others. Geico General Insurance Co. v. Virtual Imaging Services, Inc. (“Virtual II”), 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] aff’d __ So. 3d __, 2013 WL 3332385 (Fla. 2013); DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. Defendant is not permitted to use the “200% Medicare” as the exclusive methodology to limit reimbursement unless it can demonstrate that amount is the maximum reasonable amount under some alternative means. Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55, 57 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a](“Furthermore, as section 627.736(5)(a)(2) provides that insurers “may” consult the Medicare fee schedule, it follows that, under the statute, insurers who choose not to do so have recourse to some alternative means for determining a reimbursement amount.”).

For the reasons stated above, Defendant has not come forward with any admissible evidence demonstrating the Plaintiff’s charge is unreasonable which would create a triable issue.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Disposition is GRANTED.

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