21 Fla. L. Weekly Supp. 1079a
Online Reference: FLWSUPP 2110DMARInsurance — 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 Diana Martin, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-003647 CONO 73. May 21, 2014. DeLuca, Judge. Counsel: Cris E. Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Omar Giraldo, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY DISPOSITION
THIS CAUSE came before the Court on May 19, 2014, for hearing of the Plaintiff’s Motion for Final Summary Disposition per Rule 7.135, and the Court having reviewed the Motion, the entire Court file, 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 Defendant agreed medical necessity and related is not an issue in the case. See Defendant’s responses to Plaintiff’s request for admissions. Thus, the only remaining issue is whether $3,745 for two MRIs without contrast is within the range of what is “reasonable” as to price. In support of its Motion for Final Summary Disposition, Plaintiff submitted and timely filed the detailed affidavit of Belkys Torres, Vice President and corporate representative of the Plaintiff, and the Plaintiff relies upon the Defendant’s responses, or lack thereof, to Plaintiff’s request for admissions.
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 Plaintiff also relies on the Defendant’s responses to Plaintiff’s request for admissions and those request for admissions that were not responded to have been deemed admitted. See this court’s orders of 4/15/14 and 2/10/14 indicate the Defendant’s was required to respond to the outstanding request for admissions. The request for admissions that were not responded to, and which are deemed admitted, reflect that many other MRI centers charge the same or more than the Plaintiff and that State Farm allowed the same or more to other MRI centers.
The Court finds the Plaintiff’s affidavits and the request for admissions satisfy Plaintiff’s burden to prove its charge for the MRIs at issue is reasonable. United Automobile Insurance Company v. Hallandale Open (Antonette Williams) , Case No. 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. App December 11, 2013). Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So. 2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c] and the Court further 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 200% of Medicare 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).
In opposition, Defendant relies upon the amended affidavit of Dolphin Edwards served on May 19, 2014. Plaintiff argues the Defendant failed to establish a triable issue through Edward’s affidavit. 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. United Automobile Insurance Company v. Hallandale Open (Antonette Williams), Case No. 12-19662CACE (17th Cir. App December 11, 2013) [21 Fla. L. Weekly Supp. 399d]
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.
Ms. Edward 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.
In her affidavit, Ms. Edward, a fact witness, 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 an amount equal to 200% of Medicare is a reasonable charge. In essence, Defendant’s ultimate opinion excludes any data which could cause an increase in the outcome based almost exclusively on hearsay.
It is clear to this court based on the record the Plaintiff’s charge is within the range of what most MRI Providers charge for this CPT Code which is consistent with the record. Reasonable is not a set number. It is range. Edward’s affidavit was insufficient to create a triable issue. Essentially, Ms. Edward states in her affidavit that she has knowledge and experience in the insurance industry as a State Farm adjuster but she has absolutely no knowledge or experience in the MRI industry or relevant experience in the medical billing field.
The fact that she has knowledge as to what State Farm has paid in the past does not mean the Plaintiff’s charge is unreasonable especially where State Farm has paid other MRI centers that charge the same or or more without reduction based on the request for admissions. Her affidavit is nothing more than hearsay, conclusionary, incomplete, does not have sufficient facts, data or analysis to support her lay opinions. No documents were attached to her affidavit other than the affidavit of Torres, Medicare rates and workers comp rates. No other hearsay documents referred to by Edwards were attached.
Reasonableness is a range and is not just one number. Defendant has provided no evidence that Plaintiff’s charge is outside of the range of what is reasonable.
To the extent Defendant relies upon Ms. Edward as its corporate designee and fact witness, the testimony and affidavit fail to present admissible evidence which would create a triable issue. The opinion offered that the charged amount is unreasonable is inadmissible lay opinion testimony. Opinion testimony of a lay witness 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). Essentially, Defendant’s corporate designee’s opinion is that 200% of Medicare is the amount United Automobile found to be reasonable, so he agrees with that. Thus, as a matter of law, the opinions offered by Ms. Edward are not rationally based on her own perception and are not the type of lay opinions which can be relied upon by the Defendant. In addition, conclusory statements are not adequate to create an issue of fact and are insufficient to avoid Summary Disposition.
Further, medicare is not insurance as its premiums are not based on risk. 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. 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 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.
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, without more, does not mean the Plaintiff’s charge is unreasonable. See Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D2650b]. The Defendant simply fails to explain or justify why 200% of Medicare, health insurance, etc, 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. Nor did the Defendant plead this as an affirmative defense.
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] affd __ So. 3d __, 2013 WL 3332385 (Fla. 2013) [38 Fla. L. Weekly S517a]; 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 lndem. 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 it paid a “reasonable” amount which would create a triable issue.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Disposition is GRANTED. The Plaintiff is directed to submit to the Court a proposed final judgment.
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