22 Fla. L. Weekly Supp. 396a
Online Reference: FLWSUPP 2203FORNInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charge where affidavit does not explain why data from other counties used as basis for affiant’s opinion on pricing would apply equally to county where provider practices, and affiant based opinion on data from PIP insurers who incorrectly limited reimbursement to 200% of Medicare fee schedule
COASTAL RADIOLOGY, LLC (a/a/o Daniel Fornes), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-21897 COCE 53. July 17, 2014. Robert W. Lee, Judge. Counsel: Gary Marks and Rowena Racca, Marks and Fleischer, P.A., Fort Lauderdale, for Plaintiff. Deborah Braile, Brian Tenzer, and Luis del Nodal, Goldstein Law Group, Fort Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on July 14, 2014 for hearing of the Plaintiff’s Motion for Final Summary Judgment, and the Court having reviewed the Motion, 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:
Pursuant to the parties’ stipulation, the only remaining issue in this PIP case is the reasonableness of the Plaintiff’s pricing. At the hearing, the Court determined that the Plaintiff’s affidavit of Clarissa Pimentel, its fact witness, was sufficient to establish its prima facie case for reasonableness. Additionally, the Plaintiff timely filed the medical bill at issue.
A plaintiff’s prima facie showing of the reasonableness of its charges can be established by merely presenting the medical bill produced for the service at issue, along with testimony that the patient received the treatment in question. See A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; Iowa Mutual Nat’l Ins. Co. v. Worthy, 447 So.2d 998, 1000 n.5 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409, 409-10 (Fla. 1st DCA 1979); State Farm Mutual Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (11th Cir. Ct. 2004) (appellate capacity). As noted by the Fourth DCA, “[a] medical bill constitutes the provider’s opinion of a reasonable charge for the services.” A.J., 677 So.2d at 937. In the alternative, a plaintiff may also present lay testimony from a fact witness with firsthand knowledge as to why the charge for the service was set at the rate at which it was billed. Multicare, 12 Fla. L. Weekly Supp. at 33. A plaintiff may, but is not required to, produce an expert witness to establish the reasonableness of its charges. Sea World of Florida, Inc. v. Ace American Ins. Co., Inc., 28 So.3d 158, 160 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So.2d 1122, 1123 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]; A.J., 677 So.2d at 937-38; East West Karate Ass’n, Inc. v. Riquelme, 638 So.2d 605, 605 (Fla. 4th DCA 1994); Multicare, 12 Fla. L. Weekly Supp. at 33; Kompothrecas v. Progressive Consumers Ins. Co., 8 Fla. L. Weekly Supp. 505, 506 (Sarasota Cty. Ct. 2001). Clearly then, in this case, the Plaintiff has met its prima facie case, as the Plaintiff has filed its medical bill and further filed an affidavit from a fact witness explaining how the price was set.
In response, the Defendant provided the affidavit of Dr. Michael Propper. The affidavit was unclear as to the geographic area referenced by Dr. Propper. For instance, Dr. Propper referred to the “facility” at which he worked, but did not state what type of facility it is, nor where it is located. A discussion at the hearing suggested that Dr. Propper’s experience as a practitioner arose primarily in Palm Beach County. As a result, the Court gave the Defendant forty-eight hours to produce an amended affidavit clarifying this issue, if desired. The Defendant thereafter submitted a second affidavit where Dr. Propper avers that while until recently he worked out of Palm Beach County (the cities of Wellington and Jupiter), he now works out of a facility in Weston, Florida (which is located in Broward County) where he treats patients who live in Miami-Dade County. Because charges and reimbursements for medical services vary widely throughout the State of Florida based on the location of the provider (and not the location of the patient), it is crucial for an expert to establish the geographic applicability of the opinion the expert is giving. As stated recently by a federal court in an analogous area,
[a]n assessment of the relevant geographic market typically includes an assessment, almost necessarily an expert assessment, of whether and of the extent to which a change in the price [. . .] in one geographic area has a substantial effect on the price or sales in another geographic area.
Clifton-Draper v. Pelam International, Ltd., 2013 WL 5596798, *5 (M.D. Fla. 2013), Therefore, the Court concludes it was incumbent on Dr. Propper to explain why the Palm Beach and Broward County data used as the basis of his opinion on pricing would apply equally to the pricing of medical services in Miami-Dade County. This he did not do.
Moreover, in his affidavit, Dr. Propper states that on “PIP insurers as a group have been systemically reimbursing medical services at a rate that corresponds with 200% of Medicare for the year in question or 2007, whichever is higher,” which Dr. Propper refers to as the “PIP Reimbursement Rate.” Because the insurer in the instant case did not select the 200% of Medicare methodology (Virtual Imaging; Kingsway), and because before Virtual Imaging and Kingsway, most PIP insurers were incorrectly limiting their PIP reimbursements to 200% of Medicare contrary to these controlling appellate decisions, Dr. Propper is clearly using a flawed methodology in using these incorrect reimbursements as part of his analysis to support why State Farm’s payment in this ease was, in his opinion, reasonable.
In sum, Dr. Propper’s testimony is not “based upon sufficient facts or data,” and is not the “product of reliable principles and methods,” as required by Florida Statutes §90.702 (2013).
For the reasons stated above, Defendant has not come forward with any admissible evidence demonstrating it paid a “reasonable” amount which would create a genuine issue of material fact. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. The Plaintiff is directed to submit to the Court a proposed final judgment.
