22 Fla. L. Weekly Supp. 835c
Online Reference: FLWSUPP 2207MUSEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Affidavits filed by medical provider are sufficient to meet provider’s burden on summary judgment regarding reasonableness of x-ray charges where affidavits set forth factual basis for opinions — Opposing affidavit and independent medical examination report filed by insurer do not preclude summary judgment in favor of provider on issue of reasonableness of charges where IME report concludes that charges were reasonable and affidavit is conclusory and lacks foundation
A1A MANAGEMENT SERVICES, LLC D/B/A ROBERTO RIVERA-MORALES, M.D, (a/a/o Farano Muselaire), Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 13-06512 SP 25 (01). January 28, 2015. Gloria Gonzalez-Meyer, Judge. Counsel: Zachary A. Hicks, Berger & Hicks, P.A., Miami, for Plaintiff. Sarah Rickey, Vernis & Bowling of Miami, P.A., Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND FINAL JUDGMENT
This cause came before the Court on January 21, 2015, on Plaintiff’s Motion for Summary Judgment. The Court, having reviewed the motion and entire Court file, heard argument of counsel, reviewed relevant legal authority, and been otherwise advised in the premises, makes the following findings of fact and conclusions of law:Findings of Facts
Farano Muselaire was involved in a motor vehicle accident on April 26, 2012, while in a vehicle insured by Defendant, State Farm Mutual Automobile Insurance Company. The policy in effect provided for personal injury protection (“PIP”) coverage under the Florida No Fault Statute. Mr. Muselaire received services from Plaintiff, AIA Management Services, LLC d/b/a Roberto Rivera-Morales, M.D. The subject policy of insurance required Defendant to pay 80% of all reasonable medical expenses. Defendant issued payment to Plaintiff for his services at 80% of 200% of participating physician’s fee schedule of Medicare Part B. The amount in controversy is the difference between 80% of the billed amount and the paid amount. Defendant withdrew its affirmative defenses two through ten. Defendant’s only remaining affirmative defense contests the reasonableness of Plaintiff’s charge by alleging that Defendant “paid an appropriate and allowable amount to the Plaintiff.”Standard
Summary Judgment is proper if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. “In reviewing a summary judgment, this Court must consider evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party.” Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a] (quoting Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D577a]). “When the non-moving party has raised affirmative defenses, it is incumbent upon the moving party to disprove the affirmative defenses or establish their legal insufficiency.” Id. (citing Parker v. Dinsmore Co., 443 So. 2d 356 (Fla. 1st DCA 1983) (quoting Proprietors Ins. Co. v. Siegel, 410 So. 2d 993, 995 (Fla. 3d DCA 1982)).Conclusions of Law
The issue for the Court’s determination is whether summary judgment should be granted regarding the reasonableness of Plaintiff’s charges, the relation of the services to the subject motor vehicle collision, and the medical necessity of the services. The Court answers in the affirmative and grants Plaintiff’s summary judgment as to reasonableness, relation, and medical necessity, as well as on Defendant’s first affirmative defense.
I. Plaintiff Met Its Burden of Production
In support of its Motion for Summary Judgment, Plaintiff filed the Affidavit of Paul H. Wand, M.D. and the Affidavit of Roberto Rivera Morales, M.D. Dr. Wand testifies that the subject services, which he ordered, are related and medically necessary within a reasonable degree of medical certainty. The Court, having reviewed the opinion of Dr. Wand, finds Dr. Wand to be competent under the law to testify as to the relation and medical necessity of the subject services. Therefore, Plaintiff has satisfied its burden as to the relation and medical necessity of the services at issue. Plaintiff also filed the Affidavit of Roberto Rivera Morales, M.D. Dr. Rivera-Morales testifies in his affidavit that his charges are reasonable because they are within the range of usual and customary charges for the community in which Plaintiff operates, and are indicative of previous amounts Plaintiff has accepted from other automobile insurers. The Court finds that the Affidavit of Roberto Rivera Morales, M.D. satisfies Plaintiff’s burden of production as to the reasonableness of its charges. The Court also finds that it is not necessary for a plaintiff to provide expert testimony regarding the reasonableness of its medical bills. See State Farm Mutual Auto. Ins. Co. v. Multicare Medical Ctr. Inc. et. al., 12 Fla. L. Weekly Supp. 33a (Fla. 11th Cir. App. 2004); see also Pan Am Diagnostic Services, Inc. a/a/o Fritz Telusma v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Broward Cty. Ct. Oct. 1, 2013). Reasonableness can be established through lay witness testimony. Additionally, a primae facie showing of reasonableness can also be established by merely presenting the bills for the services at issue along with testimony that those services were provided to the patient. See id.
Defendant argues that the Affidavit of Roberto Rivera Morales, M.D. was insufficient to meet Plaintiff’s burden regarding reasonableness based on Progressive Express Ins. Co. v. Gomez, 2006 WL 2616376 (Fla. 13th Cir. App. 2006) [13 Fla. L. Weekly Supp. 1157a]. The Court finds the subject case is distinguishable from Gomez because the subject affidavit does set forth a factual basis for the opinion. Namely, that the affiant has knowledge and experience comparing his bills with similar providers, that the subject charges are within usual and customary charges in the community, and that Plaintiff has received and accepted the full amount of its charges from insurers in the past.
II. Defendant’s Evidence In Opposition
The Court must now consider any evidence filed by Defendant in opposition to Plaintiff’s Motion. Defendant filed the Affidavit of Michael S. Propper, M.D. regarding the reasonableness of Plaintiff’s charges. Defendant also argued that the Independent Medical Examination (IME) conducted by Glenn Sharfin, M.D. created a dispute of fact regarding relation and medical necessity of the subject services. However, after a review of the IME report, it was apparent that Dr. Sharfin actually found the subject x-ray services to be reasonable, necessary, and related to the subject automobile collision. No other evidence is presented as to the issues of relation and necessity. Therefore, as stated above, summary judgment is granted on those matters.
Turning to the Affidavit of Michael S. Propper, M.D., after reviewing the affidavit filed by Defendant in this matter, the Court finds that the opinions contained in Dr. Propper’s Affidavit are not based on sufficient facts or data to be considered by this Court under the recently adopted Daubert standard. See Fla. Stat. § 90.702 (2014). Under the standard, a party faces a greater burden in presenting expert opinion than it did under the former law. Under Daubert, the proponent of the opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data.” See Pan Am Diagnostics, Inc. v. United Automobile Ins. Co., 21 Fla. L. Weekly Supp. 200a (Broward Cty. Ct. Oct. 1, 2013). In essence, under the Daubert standard, the trial court is the gatekeeper of evidence. See Daubert v Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 290 (1993). After analyzing the opinions of Dr. Propper under the applicable Daubert standard, the Court finds that Affidavits fails to create a genuine issue of material fact regarding the reasonableness of Plaintiff’s charges. Dr. Propper’s affidavit is conclusory in nature, his testimony is not based upon sufficient facts or data, and the affidavit fails to attach any volumes relied upon in support of the opinion rendered. Dr. Propper also fails to give any testimony as to what geographic area he is referencing in his opinion or what knowledge, experience, or skill he has with regard to billing for the reading and interpretation of x-rays in Broward County, FL. The Court also finds that Defendant has not established that Dr. Propper’s opinion is the product of reliable principles. See Pan Am Diagnostic Services, Inc. d/b/a Wide Open MRI a/a/o Giji Kurian v. State Farm Mutual Auto. Ins. Co., Case No. 12-21929 COCE 53 (Fla. Broward Cty. Ct. Sept. 24, 2014) (finding that Dr. Propper did not satisfy the strict requirements of Florida Statute § 90.702 where State Farm failed to demonstrate that Dr. Propper has sufficient experience, knowledge, or skill with regard to operating a diagnostic facility to qualify him as an expert); Pan Am Diagnostic Services, Inc. d/b/a Wide Open MRI a/a/o Dana Jackson v. State Farm Mutual Auto. Ins. Co., Case No. 12-14575 COCE 53 (Fla. Broward Cty. Ct. Jul. 18, 2014); see also Hallandale Open MRI, LLC a/a/o Artemese Bryant v. State Farm Mutual Auto. Ins. Co., Case No. 11-14787 CONO 73 (Fla. Broward. Cty. Ct. Dec. 10, 2014) [22 Fla. L. Weekly Supp. 646b] (holding that Dr. Propper’s knowledge of what certain payors pay does not make him qualified to state a billed amount is unreasonable); Coastal Radiology, LLC a/a/o Daniel Fornes v. State Farm Mutual Auto. Ins. Co., Case No. 12-21897 COCE 53 (Fla. Broward Cty. Ct. Jul. 17, 2014) [22 Fla. L. Weekly Supp. 396a]. Therefore, based on the above reasoning and cases cited, Dr. Propper’s testimony fails to create a genuine issue of material fact regarding the reasonableness of Plaintiff’s charge, and summary judgment is granted in favor of Plaintiff on this issue.
Accordingly, it is ORDERED and ADJUDGED, that Plaintiff’s Motion for Summary Judgment is hereby GRANTED.
In accordance with this Order Granting Plaintiff’s Motion for Summary Judgment, Defendant, State Farm Mutual Automobile Insurance Company, shall pay Plaintiff, Roberto Rivera Morales, M.D., the sum of $305.86 in benefits and $39.18 in interest for a total recovery of $345.04, that shall bear interest at the rate of 4.75% per year, for which let execution issue. Additionally, this Court holds that Plaintiff, as the prevailing party to Count I of its Complaint is entitled to its reasonable attorney’s fees under Florida Statute § 627.428 and Florida Statute § 627.736(8) and costs pursuant to Fla. Stat. § 92.231 and Fla. Stat. § 57.041. This Court retains jurisdiction over this matter to determine the amount of attorney’s fees owed to the Plaintiff by the Defendant.
