21 Fla. L. Weekly Supp. 702a
Online Reference: FLWSUPP 2107SCOTInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment entered in favor of provider on issue of reasonableness where it is undisputed that medical provider’s charge was within range of what most MRI providers charge for CPT code at issue — Opinion of insurer’s witness that 200% of Medicare fee schedule is reasonable is insufficient to create disputed issue of fact because opinion was not based on witness’s own perceptions and was conclusory
PLANTATION OPEN MRI, LLC., (Licia Scott), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-04195 COCE 50. March 18, 2014. Peter B. Skolnik, Judge. Counsel: Amir Fleischer, Marks & Fleischer, PA, Fort Lauderdale, for Plaintiff. Adam Shapiro, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on March 5, 2014, 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:
The only remaining issue is whether an amount above $1,075.38 for the MRI at issue is a reasonable charge. Plaintiff charged $1,850.00 for the subject MRI. Defendant reduced this charge to $1,075.38. The amount at issue is $619.70
In support of its Motion for Final Summary Judgment, Plaintiff submitted the affidavit of Andrew Byers, an owner and corporate representative of PLANTATION OPEN MRI, LLC. Mr. Byers attests Plaintiff’s charges were reasonable, and usual and customary, based on his personal knowledge of PLANTATION OPEN MRI, LLC company’s billing practices, office procedures, collection practices, reimbursement trends, and amounts others were charging for similar services in the community. He further attests PLANTATION OPEN MRI, LLC regularly and consistently received reimbursements of 80% of its charge of $1,850.00 (or 100% if the policy contained medical payments) from No-Fault Insurers who did not apply the permissive 200% Medicare limited reimbursement or adopt same in their policies. The Court finds the affidavits satisfy Plaintiff’s burden to prove its charge of $1,850.00 for the MRI service at issue is reasonable. 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]. Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So. 2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c].
In opposition, Defendant relies upon the deposition testimony of John A. O’Hara, its designated corporate designee/fact witness regarding reasonableness of pricing and his subsequently filed affidavit. The Plaintiff argues the Defendant failed to establish a disputed issue of material fact through Mr. O’Hara’s affidavit and deposition testimony. This Court agrees with the Plaintiff.
Once a party moving for summary judgment presents competent evidence to support its motion for summary judgment, that party is entitled to summary judgment unless the non-moving party can come forward with competent evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla. 1979). 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 present competent, admissible evidence to rebut Plaintiff’s prima facie showing that their charge is reasonable.
The Defendant has listed John A. O’Hara as its lay witness with regard to “reasonableness.” Plaintiff deposed Mr. O’Hara at length to determine the basis for his opinion that the medical charges billed at issue in this litigation are not reasonable in price. Mr. O’Hara testified that in his experience as an adjuster, he has reviewed MRI bills in amounts ranging from $1,500.00 to $2,500.00 in non-hospital settings, but despite having reviewed those amounts billed, he did not maintain any chart, calculate any average or mean amount that was billed, and did not use those charges to derive a formula to support her conclusion that 200% of Medicare is a “reasonable charge.” (Dep. John O’Hara, p. 8, lines 3-7; p. 9 line 15-17 p. 9 ln 20- p. 10 ln 8). . In fact, when asked for the basis and underneath data to support to the conclusion that 200% of Medicare is reasonable based on reimbursement levels, Mr. O’Hara testified he has no compilation, no analysis, no spreadsheet, had no formula, no average, and no equation and that her conclusion is based upon the underneath data of every claim United Auto has ever processed, which he did not review. (Dep. John O’Hara, p. 8, lines 3-7; p. 9 line 15-17 p. 9 ln 20- p. 10 ln 8 p. 11 ln 2-4). Here, there is absolutely no evidence of sufficient data utilized to support the ultimate conclusion offered by Mr. O’Hara.
In his affidavit and testimony, Mr. O’Hara completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider. Similarly, he 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. (John O’Hara, p. 11, lines 16-20; p. 13 line 5-9). In essence, Defendant’s expert’s ultimate opinion excludes any data which could cause an increase in the outcome (John O’Hara, p. 98, lines 1-3).
It was undisputed that Plaintiff’s charge is within the range of what most MRI Providers charge for this CPT Code. Mr. Ohara’s affidavit was insufficient to create a question of Fact. Defendant also relies on the deposition of Andrew Byers wherein he testified that he has accepted medicare payments from medicare patients. This court further finds that evidence that medicare and health insurance pays less does not in and of itself create a question of fact.
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 John O’Hara as its corporate designee and fact witness, the testimony and affidavit fail to present admissible evidence which would create a genuine issue of material fact. The opinion offered (that 200% of Medicare is a reasonable amount for the service at issue) 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 Jack O’Hara are not rationally based on his 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 judgment.
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) [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” 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 it paid a “reasonable” amount which would create a genuine issue of material fact.
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.
* * *
