21 Fla. L. Weekly Supp. 200a
Online Reference: FLWSUPP 2102TELUInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Insurer failed to create genuine issue of material fact regarding reasonableness of charges where insurer’s expert, who opined that charges were unreasonable and that amount equal to 200% of Medicare Part B fee schedule was only reasonable amount, relied exclusively on undisclosed “underlying data” which insurer failed to produce or make available for inspection
PAN AM DIAGNOSTIC SERVICES, INC. (a/a/o Fritz Telusma), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-21418 COCE 53. October 1, 2013. Robert W. Lee, Judge. Counsel: Gary Marks, Marks and Fleischer, Ft. Lauderdale, for Plaintiff. Sean Sweeney, Miami Gardens, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on October 3, 2013, for hearing of the Plaintiff’s Motion for Final Summary Judgment, 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:
Pursuant to the parties’ stipulation at the pretrial conference, the only remaining issue in this PIP case is the reasonableness of the Plaintiff’s pricing. At the hearing, the Court determined that the Plaintiff’s affidavit of Roberta Kahana, its fact witness, was sufficient to establish its prima face case for reasonableness. Additionally, the Plaintiff timely filed the medical bill at issue.
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). Clearly then, in this case, the Plaintiff has met its prima facie case.
In opposition, the Defendant relied on the affidavit of Monica Johnson, its adjuster. Under Rule 1.510(e), a court may consider evidence at a summary judgment hearing only if it would be “admissible in evidence.” 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 substantially impeach Plaintiff’s evidence and further failed to present competent, admissible evidence to rebut Plaintiff’s prima facie showing that their charge is reasonable.
Initially, the Court notes that the Defendant has listed Monica Johnson in the Joint Pretrial Stipulation as its expert witness with regard to “reasonableness.” Pursuant to Fla. Stat. §90.702(1)(2013), the party presenting expert opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data” and the testimony is the product of reliable principles and methods which the witness has applied reliably to the facts of the case. See Pan Am Diagnostic Services, Inc. v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp. 937a (Broward Cty. Ct. 2013).
In her affidavit and testimony, Ms. Johnson 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 expert’s ultimate opinion excludes any data which could cause an increase in the outcome, and clearly, without any methodology, cherry picks only whatever supports her opinion. She sets forth no explanation as to why the Court should find that the broad-brush “methodology” of selection is sufficiently reliable for the Court to allow this issue to go to trial.
Under the amendments to the Florida expert opinion law, a party faces a greater burden in presenting expert opinion than it did under the former law. Under the new law, the proponent of the opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data.” The Defendant did not meet its burden in doing so, because Monica Johnson either relied exclusively on undisclosed “underlying data,” which the Defendant failed to produce the underlying data or meet its burden to make it available for inspection, or the Ms. Johnson relied on data that was facially unreliable. See Fla. Stat. §§90.702(1) (2013), 90.956 (2012); Rule 1.510(e).
As noted previously, there is generally not a single amount that is “reasonable,” but rather a range. If the provider’s charge falls within that range, the insurer must pay it, even if there are amounts lower in the range of reasonableness. As the Defendant is not permitted to use the “200% of Medicare” methodology unless that amount happens also to be a “reasonable” amount standing on its own, it is crucial that the underlying data to support this conclusion be disclosed. The Defendant has had ample opportunity to do so, and has failed in this regard.
By failing to have knowledge of any underlying data and specifically excluding any amounts greater than 200% of Medicare, Defendant has not demonstrated to this Court that the testimony is based upon sufficient facts or data, nor that the testimony is the product of reliable principles and methods. Therefore, Ms. Johnson does not qualify as an expert pursuant to Fla. Stat. §90.702(1)(2013). For the reasons stated above, Defendant has not come forward with any admissible evidence demonstrating it paid a “reasonable” amount which would create a genuine issue of material fact.
Throughout this case, the Plaintiff has attempted to have the Defendant provide its underlying data for its opinion that the reasonableness in price should be an amount different than what the Plaintiff billed, but the Defendant has continued to provide (in its responses to discovery, deposition testimony, and filed affidavits) no more than a parroting of the general factors set forth in the statute for determining whether a charge is reasonable. The Court notes that under the PIP statute, an insurer must pay an amount billed if the amount billed is “reasonable.” If the provider’s charge falls within that range, the insurer must pay it, even if there are amounts lower in the range of reasonableness. Conveniently, however, Monica Johnson offered an opinion that the amount billed by the Plaintiff was not only unreasonable, but that an amount equaling 200% of the Medicare Part B fee schedule is the only “reasonable” amount that should have been reimbursed. As the Defendant is not permitted to use the “200% of Medicare” methodology unless that amount happens also to be a “reasonable” amount standing on its own, it is crucial that the underlying data to support this conclusion be disclosed. The Defendant has had ample opportunity to do so, and has failed in this regard. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. The Plaintiff is directed to submit to the Court a proposed final judgment.
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