21 Fla. L. Weekly Supp. 871a
Online Reference: FLWSUPP 2109MONTInsurance — Personal injury protection — Coverage — Medical expenses — Related and necessary treatment — Directed verdict — Trial court properly granted medical provider’s motion for directed verdict on issues of relatedness and medical necessity of treatment where provider presented expert testimony that treatment was related and necessary, insurer’s expert conceded that his determination that treatment was not related or necessary was not reliable and not a just determination, and insurer did not severely impeach provider’s expert
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. AFFILIATED HEALTHCARE CENTERS, INC, a/a/o Armando Montalvo, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-282 AP. May 9, 2014.
(Before MIRANDA, RUIZ-COHEN, LUCK, JJ.)
(LUCK, Judge.) The issue in this case is whether the defendant’s expert testimony can be considered no evidence at all for purposes of a plaintiff’s directed verdict motion. Because it can, when the expert concedes that his opinion is not reliable and not a just determination, we affirm the trial court’s directed verdict for the plaintiff.I.
Armando Montalvo1 was involved in a car accident on November 12, 2005. Three days later, he reported the accident to his car insurance company, defendant United Automobile Insurance Company. Montalvo’s insurance policy with United included personal injury protection coverage, which pays for “medical bills, lost wages, and other economic losses.”
Two months after the accident, Montalvo went to plaintiff Affiliated Healthcare Centers, Inc. for medical treatment. At the initial evaluation, Montalvo said that he sustained injuries to his head, neck, knee, finger, and shoulder as a result of the accident, and as of January 2006 he had pain in those areas. After a medical examination and history, Montalvo was diagnosed with cervical/brachial radiculitis, cervical sprain/strain, lumbar radiculitis, lumbar sprain/strain, left knee pain, and left calf pain. The examining doctor recommended that Montalvo receive a treatment regimen “three times per week for six weeks, twice per week of six weeks, once per week for four weeks” of “chiropractic manipulation therapy with lumbar distraction as necessary, galvanic and kinetic therapy, manual and/or mechanical traction, myofascial release, ultrasound, and hot packs.”
Between January 18, 2006 and March 6, 2006, Montalvo received these treatments at Affiliated Heathcare. The bill for these services, which Affiliated Healthcare sent to United on Montalvo’s behalf, came out to $4080.00.
United “denied for payment” all treatments between January 23, 2006 and March 6, 2006 because the costs of the treatments, it said, were not reasonable, related to the accident, and medically necessary. Based on the denial of payment, Affiliated Healthcare, on Montalvo’s behalf, sued United for a declaratory judgment that the insurance policy covered the medical expenses, breach of the insurance contract, and attorney’s fees.
The trial was held from May 7 to May 10, 2012. At the end of the defendant’s case, the trial court granted Affiliated Heathcare’s motion for directed verdict, and entered final judgment for the company. United has appealed.II.
“The standard of review on appeal of a trial court’s ruling on a motion for directed verdict is de novo in which we apply the same test used by the trial court in ruling on the motion.” Fell v. Carlin, 6 So. 3d 119, 120 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D794a].
A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmoving party. In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party. If there are conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury.
Id. (quoting Sims v. Cristinzio, 898 So. 2d 1004, 1005 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D661a]).
Florida Statute section 627.736(1) requires an insurance company to provide $10,000 of personal injury protection to a “named insured . . . resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle.” § 627.736(1), Fla. Stat. That protection includes “[e]ighty percent of all reasonable expenses for medically necessary . . . services.” Id. § 627.736(1)(a). Put another way, “[u]nder this statute, an insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular service or if the service is not necessary. In a lawsuit seeking benefits under the statute, both reasonableness and necessity are essential elements of a plaintiff’s case.” Derius v. Allstate Indemnity Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a].
Our court has explained:
It is settled law that a plaintiff in a PIP case has the burden to establish that the payments it seeks were reasonable, related to the accident and necessary for treatment. Once an insured meets this burden, to escape a directed verdict, the insurer must come forward with at least some “reasonable proof” that payment is not justified.
United Auto. Ins. Co. v. Hialeah Diagnostic Ctr., 11 Fla. L. Weekly Supp. 1041a n.4 (Fla. 11th Cir. 2004). “In order to survive a motion for directed verdict once the plaintiff presents expert testimony to support a claim, the defense must come forward with countervailing evidence or severely impeach the proponent.” Id. at 1041a (citing Medina v. Peralta, 802 So. 2d 376 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D2636b]).
On appeal, United contends that the trial court erred by directing a verdict for Affiliated Healthcare on two issues: the relatedness of the medical expenses to Montalvo’s car accident; and the medical necessity of those expenses.2 United argues that it presented countervailing expert testimony and severely impeached Affiliated Healthcare’s expert on the relatedness and medical necessity issues.A.
In support of the relatedness and medical necessity issues, Affiliated Healthcare presented the expert chiropractic testimony of Dr. Barry Burak, the owner of Affiliated Healthcare. Dr. Burak testified for the company as an expert that it was his opinion, to a reasonable degree of medical probability, that Montalvo’s pain and injuries were caused by the November 2005 automobile accident. And Dr. Burak testified that the treatment Montalvo received from January to March 2006 was necessary to treat his injuries.
United argues that it presented countervailing evidence from its chiropractic expert, Dr. Marvin Merrit. On direct examination, Dr. Merrit testified as follows:
Q. Doctor, I’m going to ask you the question again. Please listen to the question closely. In your opinion, was any chiropractic treatment after January 18th of 2006 reasonable, related, or medically necessary.”
A. Based upon the information provided to me, no.
The “information provided” to Dr. Merrit included only:
A report of Independent Medical Examination from Dr. Luis Castillo D.C. dated 1/4/2006, office notes from Affiliated Healthcare Centers for dates of treatment 1/18/2006 through 2/3/2006 and HCFA 1500 Forms, which are insurance claim forms from Affiliated Healthcare Centers for dates of service 1/18/2006 through 2/3/3006 total[ing] $2,690.00.
Before giving his opinion, however, Dr. Merrit had not reviewed: the initial examination report from Affiliated Healthcare (“one of the most important documents that you would be reviewing”; “extremely important”); the report from Montalvo’s x-ray; the results from the range-of-motion testing and manual-muscle-testing; and the SOAP (subjective/objective assessment prognosis) notes from February 3 to March 6, 2006. Dr. Merrit agreed on cross-examination that each of these documents would be important in rendering an opinion on Montalvo’s condition and treatment. Then, this happened:
Q. Would you agree with me then that your opinion of March 10th, 2006 is really incomplete and cannot be relied upon because you haven’t reviewed one of the most important papers in Mr. Montalvo’s medical records?
A. Yes, sir.
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Q. Okay. So, Doctor, like I said, I know this is somewhat difficult because you haven’t been provided that document but would you agree with me, Doctor, that without that document you really didn’t have the tools to be able to render a just determination on Mr. Montalvo’s medical conditions?
A. Yes, sir.
Dr. Merrit, in other words, agreed with Affiliated Healthcare’s counsel that his opinion “cannot be relied upon” and he wasn’t “able to render a just determination on Mr. Montalvo’s medical conditions.” Affiliated Healthcare argues that these concessions by Dr. Merrit — the only “countervailing evidence” presented by United — “le[ft] United with no expert testimony to refute Affiliated [Healthcare]’s medical expert testimony.”
There are two sets of cases that inform our decision. In one set, the insurance company presents no evidence — no witnesses — in its case to refute the plaintiff’s expert opinion. See Affiliated Healthcare Ctrs. v. United Automobile Ins. Co., 18 Fla. L. Weekly Supp. 758a (Fla. 11th Cir. Ct. Jun. 22, 2011) (“Affiliated presented expert testimony from Dr. Duran that the treatment was medically necessary. United Auto offered no ‘countervailing’ expert testimony; in fact, it called no witnesses at all. . . . Because Affiliated’s evidence was uncontradicted, it was required to be believed and not disregarded.”); Progessive Am. Ins. Co. v. Virtual Imaging Servs., 16 Fla. L. Weekly Supp. 293b (Fla. 11th Cir. Ct. Feb. 20, 2009) (affirming directed verdict “where there was no conflicting evidence whatsoever to refute the medical expert testimony”); Optima Health & Rehab v. United Automobile Ins. Co., 11 Fla. L. Weekly Supp. 146a (Fla. Miami-Dade Cty. Ct. Oct. 2, 2003) (Suarez, J.) (“Therefore, once the Plaintiff in a PIP action has introduced expert testimony that the treatment was reasonable, related and necessary, the burden falls to the Defendant who must either substantially discredit the Plaintiff’s expert or present expert testimony on its own. UAIC failed to do either in the above-captioned trial. The jury could not, therefore, find for UAIC and against Optima.”).
In the other set, the insurance company presents expert testimony in its case but that testimony does not conflict with the plaintiff’s expert. In Evans v. Montenegro, 728 So. 2d 270 (Fla 3d DCA 1999) [24 Fla. L. Weekly D326a], for example,
The plaintiff’s medical expert testified that the plaintiff sustained a permanent injury resulting in a nine to ten percent permanent impairment rating. The defendant countered with her own expert who testified that the plaintiff sustained a permanent injury, but assigned only a one percent permanent impairment rating.
Because there was no conflict in the expert testimony regarding whether the plaintiff sustained a permanent injury, the trial court directed a verdict in favor of the plaintiff on the issue of permanency.
Id. at 271. The Third District affirmed, explaining that “[a]lthough the defendant did put on expert testimony, that testimony also established that the plaintiff’s injury was permanent.” Id.; see also State Farm Mut. Automobile Ins. Co. v. Orr, 660 So. 2d 1061, 1063 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1466a] (“To the contrary, putting on its best case, it offered only expert medical testimony corroborating that offered by plaintiff concerning the permanency of her injury. Thus, at the close of the evidence, both plaintiff and defendant had offered evidence fully supporting plaintiff’s claim of permanent injury.”).
In some ways this case is like the no-evidence cases. If the opinion Dr. Merrit gave on direct examination “cannot be relied upon” and was not a just determination of Montalvo’s medical condition, as Dr. Merrit conceded on cross examination, then the opinion is a nullity; it is as if the opinion was never given. It cannot be relied upon by the jury in deciding the case on the subject of the opinion: the relatedness of Montalvo’s injuries to the treatments he was getting; and the medical necessity of those treatments. The cornerstone of expert testimony is that it is based on “reliable principles and methods.” § 90.702(2), Fla. Stat. If the expert himself says that his opinion cannot be relied upon and is not a just determination of the medical condition, then it cannot be expert testimony that the jury and court consider as part of the verdict. It is not “reasonable proof” that can overcome a directed verdict motion. See Davis v. Caterpillar, Inc., 787 So. 2d 894, 898 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D1141b] (“One of a trial judge’s jobs is to prohibit unreliable expert testimony from reaching a jury.”).
In other ways this case is like the no-conflict cases. Dr. Merrit conceded that, while he may have chosen different treatment methods, those prescribed by Affiliated Healthcare for Montalvo were not unreasonable or contrary to schools of chiropractic thought or the rules and regulations of the Board of Chiropractors. That concession, combined with Dr. Merrit’s agreement that his opinion cannot be relied upon, left no conflict between Dr. Burak and Dr. Merrit’s opinions. In important respects, Dr. Merrit corroborated Dr. Burak’s opinion that the treatments to Montalvo were within the bounds of reason and professional judgment.
Either way, there was no “conflicting evidence” on the relatedness and medical necessity issues, which is the cornerstone of overcoming a directed verdict motion where the plaintiff presents expert testimony. See Wald v. Grainger, 64 So. 3d 1201, 1205 (Fla. 2011) [36 Fla. L. Weekly S211b]. At the end of Dr. Merrit’s testimony, there was “no evidence . . . to support the position of the party moved against,” United. See Jarell v. Churm, 691 So. 2d 69, 70 (Fla. 4th DCA 1992).B.
United argues that the directed verdict for Affiliated Healthcare was error for a second reason: because the testimony of Dr. Burak, Affiliated Healthcare’s expert on relatedness and medical necessity, was severely impeached, such that the jury could reasonably find for United. To “severely” impeach a plaintiff’s expert, the defendant must “clearly and directly contradict an expert opinion or the facts upon which that opinion is predicated.” Jarrell, 611 So. 2d at 71. The impeachment cannot be “minor and indirect,” Evans, 728 So. 2d at 271; instead, it must be “inconsistent” with the expert’s diagnosis or opinion, Jarrell, 611 So. 2d at 71.
Here, during the cross-examination of Dr. Burak, Dr. Burak testified that he had no information on whether Montalvo: was treated by fire rescue at the scene of the car accident or by his primary care physician shortly afterwards; missed time at work or was put on restrictive duty; and had bruising or marks. Dr. Burak was asked a number of hypothetical questions about whether Montalvo’s employment, medical history, x-ray placement, and honesty could have affected the diagnosis and treatment. Dr. Burak testified inconsistently on one issue: whether Montalvo was getting better. At his deposition Dr. Burak testified that Montalvo was not getting better; at trial, Dr. Burak said he was.
None of these hypotheticals and gaps is inconsistent with or clearly and directly contradicts Dr. Burak’s medical opinion that Montalvo’s pain and injuries were related to his car accident, and the treatment he received was medically necessary. The most that Dr. Burak conceded was that it was possible that Montalvo was not really injured or had pre-existing injuries given his missed appointments and degenerative condition. This possibility, however, did not clearly and directly contradict, and was not inconsistent with, Dr. Burak’s medical judgment, based on his review of Montalvo’s medical records, that the pain and injuries were related and the treatment medically necessary.
The Evans and Jarrell cases illustrate this point well. In Evans, the defendant attempted to severely impeach the plaintiff’s expert this way: “the evidence showed that the plaintiff’s expert was not board certified; that the plaintiff did not seek additional medical treatment following arthroscopic surgery; that the plaintiff seem[ed] to have maintained an active lifestyle; and, that the plaintiff did not even make a claim of lost earning capacity due to the injury.” Evans, 728 So. 2d at 271. The Third District, affirming the directed verdict, concluded that “the defendant neither severely impeached the plaintiff’s expert nor presented other conflicting evidence . . . . The evidence relied upon by the defendant as a basis for this appeal was minor and indirect.” Id.
Likewise, in Jarrell, “[t]he defense evidence consisted of the plaintiff’s previous medical history and a surveillance tape showing her ability to turn her head and to carry items of household furniture.” Jarrell, 611 So. 2d at 70. The Fourth District said even this video evidence was not enough. “It was incumbent upon the defense . . . at the very least, to inquire of plaintiff’s expert whether the activities engaged in by plaintiff had any substantial impact on his professional opinion that plaintiff had suffered a permanent injury.” Id. at 71. The Fourth District concludes:
[B]ased solely upon consideration of evidence which does not clearly and directly contradict an expert opinion or the facts upon which that opinion is predicated, a jury of lay persons cannot be credited with having the technical expertise to totally disregard an expert medical opinion. There were no such direct conflicts in the record of these proceedings.
Id.
Likewise, during Dr. Burak’s testimony, none of the questions asked by United called into question — had a substantial impact on — his expert opinion on relatedness and medical necessity. As in Evans and Jarrell, raising the possibility that Montalvo was lying about his pain based on Montalvo’s pre-treatment medical history and post-treatment actions is not enough to severely impeach the expert unless it is connected to, and has a substantial impact on, the expert’s testimony. Indeed, the cross-examination of Dr. Burak was not based on contrary evidence presented by United (like video surveillance) that would have called into question the expert opinion, but rather on alternative possibilities for Montalvo’s pain. Because United did not make that connection — did not get Dr. Burak to concede or agree or ask whether the possibilities and gaps in information United raised would have substantially impacted his opinion — it did not severely impeach him.3III.
Because, like the trial court, all we are left with is Dr. Burak’s medical opinion on the relatedness and medical necessity issues, we affirm the directed verdict for Affiliated Healthcare.
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1In the complaint, and the subsequent pleadings, including in the style of this appeal, Montalvo’s name is spelled with a “v” as the second to last letter. In the trial transcript, it has his name with a “b” as the second to last letter. The court will use the way it is spelled in the style of the case throughout this opinion.
2United does not argue on appeal that the trial court erred in directing a verdict for Affiliated Healthcare on the issue of whether the medical expenses were reasonable. We, therefore, will not address that issue.
3In other words, United needed to do to Dr. Burak what Affiliated Healthcare did to Dr. Merrit: get him to admit that some fact or document that he did not have affected his professional opinion.
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