21 Fla. L. Weekly Supp. 306b
Online Reference: FLWSUPP 2104WESTInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — Testimony by insurer’s expert regarding alleged deficient recordkeeping on part of treating physician was not sufficient to refute testimony by insured that treatment she received was related to injuries sustained in automobile accident — Trial court erred in denying insured’s motion for directed verdict on issue of relatedness — Remand with directions to enter directed verdict on this issue and for new trial on remaining issues of medical necessity and reasonableness of bills
SEVILA PRESSLEY WESTON, Appellant/Cross-Appellee, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee/Cross-Appellant. Circuit Court 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 11-660 AP & 12-127AP. L.T. Case No. 07-1489 CC 05 (06). November 26, 2013. An appeal from the County Court in and for Miami-Dade County, Bronwyn Miller & Gladys Perez, Judges. Counsel: Marlene S. Reiss, Marlene S. Reiss, P.A., for Appellant/Cross-Appellee. Michael J. Neimand, Office of General Counsel, United Automobile Insurance Company, for Appellee/Cross-Appellant.
(Before FIRTEL and TRAWICK, JJ.1)
(PER CURIAM.) The Appellant/Appellee, Sevila Pressley Weston (“Weston”), was an insured under a policy for Personal Injury Protection (PIP) benefits provided by the Appellee/Appellant, United Automobile Insurance Company (“United Auto”). On April 11, 2005, Weston was involved in a car accident and sustained injuries. Ten days later, on April 21, 2005, Weston began treatment for her injuries at American Medical Rehab, and ended her treatment approximately three months later on June 27, 2005. The bills for this treatment totaled $8,385.00.
After United Auto refused to pay benefits, Weston, on January 25, 2007, brought suit against United Auto alleging breach of contract. On March 28, 2007, United Auto filed its amended answer, wherein it denied that Weston’s treatment was reasonable, related and necessary. Moreover, as an affirmative defense, United Auto alleged that Weston’s claim for benefits should be denied because she unreasonably failed to cooperate by failing to attend two scheduled Examinations Under Oath (EUO). Premised on this affirmative defense, approximately seven months later, on October 31, 2007, United Auto filed a Notice of Service of Proposal for Settlement.
The matter went to trial on April 20, 2010. In seeking to establish that her injuries and subsequent medical treatment were related to the April 11, 2005 accident, Weston testified that prior to the accident, she was in fine health, and that nothing that she did at her job caused the pain that she experienced after the accident. Weston testified that all of the treatment she received from American Medical Rehab was related to the April 25, 2005 accident and was beneficial, alleviating her pain.
After Weston testified, Dr. David Tuchinsky was called as a witness. Dr. Tuchinsky testified that he reviewed the records of Weston’s prior treating doctor, Dr. Parsons, and concluded that all the treatment she received was reasonable and medically necessary. Under cross-examination by United Auto, Dr. Tuchinsky maintained that, notwithstanding the inconsistencies in Dr. Parsons’ recordkeeping, the treatment Weston received was reasonable, related and necessary.
After Weston rested, United Auto presented the testimony of John Morris, D.C. Morris’ testimony was solely limited to the recordkeeping of Dr. Parsons. By way of example, Morris testified that Dr. Parsons’ initial report “wasn’t very specific” and that “it didn’t match the case that followed[;] the treatments prescribed didn’t match the treatments that were performed.” Morris went on to testify that Dr. Parsons “failed to document injuries and failed to document the treatment,” and that Weston’s “complaints and findings as listed were self-contradictory.” Opining that Dr. Parsons’ recordkeeping fell below the minimal standards set for such process, Morris concluded that “from the records, the treatment was not reasonable, related or necessary to this claimed crash.”
After United Auto rested, Weston moved for a directed verdict on the issue of relatedness. Weston argued that she was entitled to the verdict because there was no evidence to show that her injuries were caused by any occurrence other than the April 11, 2005 accident. In response, United Auto maintained that, based on the medical records, “because [of] the inconsistent nature of the diagnosis and the body parts treated as it related to the original diagnosis, [such] would raise a question whether the treatment was related to the injuries [caused by] the accident[.]”
The trial court deferred ruling and sent the matter to the jury. The jury subsequently found that the services Weston received were not related to the accident, and a verdict was entered in favor of United Auto. The remaining issues of reasonableness and necessity, as well as the merits of United Auto’s EUO affirmative defense (on which it had moved for a directed verdict), did not need to be addressed. Weston timely moved for a Renewed Directed Verdict and New Trial on the basis that the jury was not presented with any evidence from which it could reasonably infer that the treatment rendered was not related to the April 11, 2005 accident. Weston’s motion was eventually denied.
After the verdict, but prior to the entry of the final judgment, United Auto served its motion for entitlement to attorney fees based on its proposal for settlement filed on October 31, 2007. United Auto’s motion was denied.
Currently, Weston appeals the denial of her motion for directed verdict on the issue of relatedness, and United Auto cross-appeals the trial court’s denial of its motion for fees.
We reverse and remand for further proceeding consistent herewith.
With respect to the issue of relatedness in PIP cases, “the medical treatment covered by the insurance policy is treatment that is related to the bodily injury arising out of the ownership, maintenance, or use of the motor vehicle.” See In re Standard Jury Instructions in Civil Cases, 966 So. 2d 940, 942 (Fla. 2007) [32 Fla. L. Weekly S563a]. In simpler parlance, relatedness is established by showing that injuries and subsequent medical treatment therefor arose out of a subject accident. Thus, for example, treatment for injuries whose origins pre-exist the subject accident will be deemed unrelated and thus not covered.
Weston testified that all the injuries for which she was treated arose out of the April 11, 2005 accident. This testimony went unrefuted, in that there was no evidence that any of these injuries were pre-existent or otherwise arose from a different source other than the subject accident. Further, Dr. Tuchinsky testified and concluded that Weston’s treatment was reasonable and necessary, and all related to the accident, notwithstanding the inconsistencies, as alleged by United Auto, of the medical records he reviewed.
In response, United Auto offered the testimony of John Morris, its expert, who testified and concluded that, based on what he deemed to be poor or substandard recordkeeping, the injuries and treatment were not related to the accident. However, while perhaps not binding, persuasive legal authority strongly and clearly suggests that deficient recordkeeping cannot provide a legal basis for disestablishing relatedness (or, conversely, establishing unrelatedness) in the PIP context. See generally Affiliated Healthcare Center, Inc. (a/a/o Francis Donaldson, as guardian of Utiva Turner), 18 Fla. L. Weekly Supp. 758a (Fla. 11th Jud. Cir., June 22, 2011) (reversing jury verdict that found that the medical treatment was not necessary based upon United Auto’s attack on the medical recordkeeping); United Auto. Ins. Co. v. Apple Med. Center, LLC (a/a/o Jean Pierre Francoise, et al), 18 Fla. L. Weekly Supp. 336b (Fla. 11th Jud. Cir. February 10, 2011) (affirming summary judgment where United Auto’s refuting affidavits were conclusory; the court noting that “bald assertion that the physician provider’s documentation is ‘deficient’ comes without citation to law, regulation or rule.”); Michael J. Delesparra, D.C., P.A. (a/a/o Joseph Walkens) v. MGA Ins. Co., Inc., 19 Fla. L. Weekly Supp. 854c (Broward County Court, June 18, 2012) (striking the insurer’s purported defense of allegedly deficient medical recordkeeping, finding that “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.”); Ali v. McCarthy, 17 Fla. L. Weekly Supp. 661a (Seminole County Court, May 25, 2010) (finding that medical recordkeeping “does not go to the efficacy of the treatment, causal connection or reasonableness of the charge.”).
In order to refute relatedness, United Auto had to present actual and/or factual evidence which would purport to more or less show that the injuries and subsequent medical treatment did not arise out of the subject accident. Alleged deficient recordkeeping cannot satisfy this requirement and, tellingly, United Auto in its brief does not cite any authority supporting the contrary.
Accordingly, since there was no legally sufficient evidence presented by United Auto to refute Weston’s testimony that her injuries and treatment were related to the accident, the trial judge should have granted Weston’s motion for directed verdict on the issue of relatedness. Given the law and the testimony, the jury could not reasonably differ as to the existence of a material fact or material inference as to whether Weston’s injuries and treatment were related to the accident. See Ligman v. Tardiff, 466 So. 2d 1125 (Fla. 3d DCA 1985) (discussing standard for directing verdicts).
Finding that the trial court should have directed a verdict in Weston’s favor and against United Auto, it follows that the court’s denial of United Auto’s motion for attorney fees is nullified, as it is no longer the prevailing party.
Accordingly, we REVERSE and REMAND this matter to the trial court with instructions that it enter a directed verdict in favor of Weston on the issue of relatedness, and conduct a new trial on the remaining issues of medical necessity and the reasonableness of the bills. However, we note parenthetically that in light of recent development in the law involving the use of the EUO as a condition precedent to coverage, United Auto’s defense at this juncture may or may not be actionable. (FIRTEL and TRAWICK, JJ., concur.)
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1The parties agreed to proceed with two judges when informed that the third judge originally scheduled was unable to sit because of illness.
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