21 Fla. L. Weekly Supp. 239a
Online Reference: FLWSUPP 2103DESHInsurance — Personal injury protection — Coverage — Medical benefits — MRI — Medical necessity — Affidavit and deposition of insurer’s expert asserting that provider’s documentation was deficient, indicating that necessity for MRI so late in treatment of insured was questionable, and averring to fact that, in expert’s opinion, the MRI was not medically necessary, was sufficient to create genuine issue of material fact regarding necessity of MRI — Trial court erred in entering final summary judgment in favor of provider — Precedent standing for proposition that MRIs can be determined to be medically reasonable and necessary as matter of law when adverse party presents no evidence to the contrary does not apply in this case in which there were disputed issues of material fact on the issue
STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. CENTRAL MAGNETIC IMAGING OPEN MRI OF PLANTATION, LTD., (a/a/o Evelyn Deshommes), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 10-47185CACE. L.T. Case No. 06-17925COCE(50). October 25, 2013. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Peter B. Skolnik, Judge. Counsel: Nancy Gregoire, Kirschbaum, Birnbaum, Lippman & Gregiore, PLLC, Fort Lauderdale, and Matthew Hellman, Matt Hellman, P.A., Plantation, for Appellant. Marlene S. Reiss of Law Offices, Marlene S. Reiss, P.A., Miami, for Appellee.
(Before STREITFELD, GATES and PHILLIPS, JJ.)
(GATES, Judge.)OPINION
Appellant, State Farm Fire and Casualty Company (“State Farm”), brings this appeal from the trial court’s entry of final summary judgment in favor of Appellee, Central Magnetic Imaging Open MRI of Plantation, Ltd. (a/a/o Evelyn Deshommes) (“Central Magnetic”). This Court has jurisdiction to consider the appeal pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A) and section 26.012(1), Florida Statutes. Having carefully considered the briefs filed by the parties, the record, and applicable law, we dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320, and reverse the decision of the trial court.Facts
On March 5, 2005, State Farm’s insured Evelyn Deshommes (“Deshommes”) was involved in an automobile accident that resulted in injuries. For approximately ninety (90) days following the accident, Deshommes received a total of forty-seven (47) chiropractic treatments at Advanced Chiropractic and Medical Center (“Advanced Chiropractic”). On June 10, 2005, just prior to terminating Deshommes’ treatment, Advanced Chiropractic sent Deshommes to Appellee Central Magnetic for a magnetic resonance imaging (“MRI”) at the cost of $1,850. Central Magnetic, as assignee of Deshommes’ personal injury protection (“PIP”) benefits, submitted a bill to State Farm for the MRI. State Farm denied the claim and in March 2007, Central Magnetic filed suit.
On December 3, 2007, the trial court granted Central Magnetic’s Motion for Final Summary Judgment and Final Judgment (“First Judgment”), and a Final Judgment awarding Central Magnetic’s attorney’s fees and costs. On April 6, 2009, the Circuit Court of the 17th Judicial Court in and for Broward County, Florida, sitting in its appellate capacity, reversed and remanded the First Judgment and Final Judgment awarding attorney fees. Central Magnetic petitioned the Fourth District Court of Appeal (“Fourth District”) for certiorari review. See Central Magnetic Imaging Open MRI of Plantation, Ltd. a/a/o Evelyn Deshommes v. State Farm Fire and Casualty Ins. Co., 22 So. 3d 782 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2396a]. The Fourth District denied the petition. On August 9, 2010, after remand, Central Magnetic filed a renewed motion for summary judgment as to the issue of the medical necessity, reasonableness and relatedness of the MRI.1 On October 5, 2010, the trial court granted Central Magnetic’s Renewed Motion for Final Summary Judgment and Final Judgment (“Second Judgment”). On November 9, 2010, the trial court denied State Farm’s Motion for rehearing on the Second Judgment. On December 8, 2010, State Farm timely filed its Notice of Appeal of the Second Judgment. This appeal followed.Analysis
When reviewing a trial court’s entry of summary judgment, an appellate court applies a de novo standard of review. Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) [26 Fla. L. Weekly S465a]. Although a trial court order is cloaked with the presumption of correctness, when reviewing an order granting summary judgment, the appellate court “must draw every possible inference in favor of the party against whom the motion is made.” Wills v. Sears, Roebuck & Co., 351 So. 2d 29, 32 (Fla. 1977). To that extent, summary judgment is appropriate “if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510 (c). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact. Unless the material facts are so crystallized that nothing remains except questions of law, summary judgment should not be granted. Moore v. Morris, 475 So. 2d 666 (Fla. 1985). Moreover, “the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met [its] burden.” Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966).
The Appellant presents two issues on appeal, and argues that the trial court erred in entering the Second Judgment because there are genuine issues of material fact regarding the medical necessity of Central Magnetic’s MRI based on: (1) Dr. Gene Jenkins, D.C.’s report, affidavit and deposition; and (2) Baynas v. American Mutual Fire Ins. Co., 359 So. 2d 506, 507 (Fla. 1st DCA 1978). Having reviewed the record on appeal, we determine that the trial court erred in granting summary judgment because Dr. Jenkins’ report, affidavit and deposition create a genuine issue of material fact on the issue of medical necessity.
Under Florida law, “[w]hether a given medical service is ‘necessary’ under section 627.736(1)(a) is a question of fact for the jury.” Derius v. Allstate Indem. Co., 723 So. 2d 271, 274 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a]. In support of its renewed motion for summary judgment, Central Magnetic filed the affidavit of Dr. Amir Kermani, D.C. who attested to the fact that the services provided by Central Magnetic were reasonable, related, and necessary as a result of the automobile accident. Additionally, Central Magnetic submitted the deposition testimony of State Farm’s expert, Dr. Jenkins.
The issue on appeal is the sufficiency of the evidence provided by State Farm in opposition to Central Magnetic’s renewed motion for summary judgment. Specifically, State Farm submitted Dr. Jenkins’ report and affidavit, wherein Dr. Jenkins stated, in part, that the MRI was not medically necessary based on the documentation he reviewed. Central Magnetic argued below that State Farm could not meet its burden on summary judgment based on Dr. Jenkins’ opinion that the medical records were insufficiently documented. The trial court granted summary judgment in favor of Central Magnetic determining that State Farm did not meet its burden.
Other circuit courts, in their appellate capacity, have noted that a medical expert opinion asserting that a provider’s documentation is deficient without offering anything more does not create an issue of material fact to avoid summary judgment. See United Auto. Ins. Co. v. Apple Medical Center, LLC, 18 Fla. L. Weekly Supp. 336b (Fla. 11th Jud. Cir., February 10, 2011) (emphasis added). While we agree with that conclusion, the facts of the instant case demonstrate that there is additional competent evidence in the record to support our determination that a genuine issue of material fact exists. Dr. Jenkins, in his deposition, questioned the necessity of the MRI when it was ordered so late into Deshommes’ treatment. Additionally, Dr. Jenkins averred to the fact, in his opinion, that the MRI was not medically necessary. Specifically, Dr. Jenkins opined that the MRI at Central Magnetic was not necessary after ninety days of treatment at Advanced Chiropractic, combined with the absence of any radicular complaints. On this basis, we find that the summary judgment evidence is sufficient to create a genuine issue of material fact, and that the issue of medical necessity should be submitted to a jury for a determination. See E. Qualcom Corp. v. Global Commerce Center Ass’n, Inc., 59 So. 3d 347, 350 – 351 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D886a] (“Summary judgment may not be used as a substitute for trial. If the affidavits and other evidence raise any doubt as to any issue of material fact then a summary judgment may not be entered.”) (quotation and citation omitted).
Finally we determine that Baynas v. American Mutual Fire Ins. Co., 359 So. 2d 506 (Fla. 1st DCA 1978) does not apply based on the record before us. Baynas stands for the proposition that MRIs can be determined to be medically reasonable and necessary, as a matter of law, only when the adverse party presents no evidence to the contrary. Since we conclude that there are disputed issues of material fact, we must also conclude that the MRI at issue is not, as a matter of law, reasonable and necessary.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that the trial court’s final judgment is REVERSED and REMANDED for proceedings consistent with this opinion. (PHILLIPS and STREITFELD, JJ., concur.)
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1Both parties state that the sole issue on appeal is the medical necessity of the MRI.
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