21 Fla. L. Weekly Supp. 201b
Online Reference: FLWSUPP 2102ROBIInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — Affidavit of physician was not competent evidence of relatedness and medical necessity of treatment provided to insured where affiant and treating physician were licensed under different chapters of Florida Statutes — Chiropractic treatment — Affidavit of chiropractor submitted by insurer was sufficient to raise disputed issue of material fact only with respect to “daily consecutive treatment” for certain dates, but raises no disputed issue of material fact as to any other issue — Discussion of deficiencies in affidavit
PRIORITY MEDICAL CENTERS, LLC (a/a/o ARLENE ROBINSON-RAMPONE), Plaintiff, vs. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-14268 COCE (53). June 3, 2013. Robert W. Lee, Judge. Counsel: Sisy Mukerjee, Coral Springs; Emilio Stillo, Davie, for Plaintiff. Ava Mahmoudi, Hollywood, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PARTPLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on May 20, 2013 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court’s having reviewed the Motions, 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 Court initially addresses Defendant’s argument that the Plaintiff has improperly submitted the affidavit of Jonathan Tarrash, M.D., in an effort to support the medical treatment rendered by Lawrence Blumberg, D.O. The record is not clear to the Court what treatment, if any, was done and billed by Dr. Blumberg which is at issue in this case. However, the Court agrees that Dr. Tarrash’s affidavit is not competent evidence of the relatedness and medical necessity of Dr. Blumberg’s treatment because Dr. Tarrash and Dr. Blumberg are licensed under separate chapters of the Florida Statutes. Cf. Fla. Stat. §627.736(7)(a) (2012). As a result, Dr. Tarrash’s testimony would likely not be admissible for this purpose, and accordingly cannot be used to support a summary judgment. Rule 1.510(e), Fla. R. Civ. P.
Next, the Court considers the chiropractic treatment, which appears to be really what is at issue in this case. The Defendant has timely submitted the affidavit of Michael Mathesie, D.C. in an effort to contravene the Plaintiff’s prima facie case set forth in the Plaintiff’s affidavits. Reviewing Dr. Mathesie’s lengthy verbose affidavit has proven to be quite the challenge. After careful, detailed review of Dr. Mathesie’s affidavit, the Court finds that Dr. Mathesie has sufficiently raised a disputed issue of material fact only in paragraph 25 of his affidavit as to “daily consecutive treatment” on June 5, 2008; June 11, 2008;. and June 17, 2008. For reasons set forth hereinafter, the Court finds that he has raised no disputed issue of material fact as to any other issue.
This Court initially points out that much set forth in Dr. Mathesie’s affidavit is irrelevant to the issues in dispute, and for this reason as well as others would not be admissible at trial. See Rule 1.510(e), Fla. R. Civ. P. For instance, much, if not all, of the following paragraphs should be disregarded: 9 (referring to police report), 10 (referring to photographs), 13 (raising fraud, which is not an issue in this case), 14 (discussing his understanding of what the law is), 15 (fraud), 27 (same), 29 (discussing the treating physicians’ disciplinary history and criminal records), 30 (same), and 31 (same).
Moreover, much of Dr. Mathesie’s affidavit does nothing more than point out that he needs more information in order to conclude that particular treatment is reasonable, related, and medically necessary, opining that because he does not have this information, the treatment as a result must not be reasonable, related, and medically necessary. This amounts to nothing more than masking the argument that treatment should not be paid if the medical records are insufficiently detailed, an argument which this Court has already rejected.1 As a result, this Court finds Dr. Mathesie’s affidavit to not create a disputed issue of material fact concerning treatment in this case based on that argument (specifically, paragraphs 15, 16, 18, 19, 21, 23, 24, 26 and 28).
Further, Dr. Mathesie’s affidavit contains much unnecessary information that simply does not assist the Court in determining any matters at issue. On the contrary, this unnecessary information appears to overshadow the few areas of opinion that Dr. Mathesie actually offers. For instance, paragraph 13 contains an unnecessary 8-line discussion of the purpose of a statutory disclosure and acknowledgment form. As with the failure to comply with medical recordkeeping requirements, the failure to provide a statutory disclosure and acknowledgment form is not a defense to payment of a PIP claim. Florida Medical & Injury Ctr, Inc. v. Progressive Express Ins. Co., 29 So.3d 329, 341 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b]. Nor has such a defense been raised in this case. Paragraph 14 contains an unnecessary overly-detailed explanation of the purposes and uses of CMS-1500 forms and CPT codes. Similarly, paragraph 17 contains much unnecessary explanation of the purpose and use of Progress Notes, while paragraph 28 contains a lengthy discussion of the definition of “medical necessity,” which goes well beyond that provided by the Florida Legislature. See Fla. Stat. §627.732(2).
As noted, failure to provide a disclosure and acknowledgment form does not shield the insurer from paying a PIP claim. However, Dr. Mathesie incorrectly argues that [i]f the intent of this S D and A form is honored, 99204 would not be considered reasonable, related, or medically necessary because it was not actually rendered on 6/03/08 but upcoded” (¶13). Finally, the issue of multiple unit treatment, discussed in paragraphs 20 and 22, has likewise been found not to be a defense to payment of a PIP claim. See State Farm Fire & Cas. Co. v. Champion Chiropractic & Rehab, Inc., 20 Fla. L. Weekly Supp. 482a (17th Cir. Ct. 2013) (appellate capacity) (also involving a similar affidavit by Dr. Mathesie). Accordingly, it is hereby
ORDERED and ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. The only remaining issues in this case are the relatedness and medical necessity of treatment on June 5, 11, and 17, 2008; the relatedness and medical necessity of any medical treatment billed by Dr. Lawrence Blumberg; and the reasonableness of pricing of treatment represented by CPT code A4556.2
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1See Michael J. Delesparra, D.C., P.A. v. MGA Ins. Co., Inc., 19 Fla. L. Weekly Supp. 854c (Broward Cty. Ct. 2012), in which this Court stated:
If the Legislature had intended a scenario to result in a PIP provider’s bill being not payable, “it could have said so.” See Florida Medical & Injury Center, Inc. v. Progressive Express Ins. Co., 29 So.3d 329, 338 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b]. Therefore, although medical providers are required to maintain a certain level of medical recordkeeping, it does not follow that failure to do so renders a provider’s treatment gratuitous. See id. at 341 (“Florida statutes are filled with duties and requirements unaccompanied by penalties or consequences for noncompliance. The courts are not at liberty to manufacture one.”). This precise issue has been addressed by at least two trial courts, both of which agreed that failure to maintain adequate medical records is not a defense to payment in a PIP case. Dr. Kim Reddick, D.C., P.A. v. State Farm Mutual Automobile Ins. Co., 19 Fla. L. Weekly Supp. 487b (Volusia Cty. Ct. 2012); South Florida Pain & Rehabilitation, Inc. v. United Automobile Ins. Co., 16 Fla. L. Weekly Supp. 981b (Broward Cty. Ct. 2009). The Court has reviewed both of these decisions, and agrees with their well-reasoned conclusions.
2This Court has already entered summary judgment on the issue of reasonableness of pricing by separate order dated May 20, 2013.
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