22 Fla. L. Weekly Supp. 166a

Online Reference: FLWSUPP 2201MAROInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavits filed by insurer do not preclude summary judgment in favor of medical provider on issue of reasonableness of MRI charges where affiants are not qualified to render opinion on reasonableness of charges and opinions are not based upon sufficient facts or data, are not product of reliable principles or methods and do not reflect reliable application of principles and methods to facts

COASTAL RADIOLOGY, LLC., (Manuel Marono), Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 12-06550 (55). August 5, 2014. Sharon Zeller, Judge. Counsel: Gary Marks and Rowena Raca, Marks and Fleischer, P.A., Fort Lauderdale, for Plaintiff. Stephen Mellor and Matthew Grosswald, Roig, Tutan, Rosenberg, Martin & Stoller, P.A., Deerfield Beach, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on July 28, 2014 for hearing of the Plaintiff’s Motion for Final Summary Judgment, and the Court having reviewed the motion, the entire Court file including Plaintiff’s Requests for Admissions and the Defendant’s responses and any responses not filed are deemed admitted, and the relevant legal authorities; having heard the parties’ arguments; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:

Medical necessity and relatedness of the MRI studies rendered by the Plaintiff are deemed admitted. Thus, the only remaining issue for this court to decide is whether the Plaintiff’s charge for the MRIs provided to the claimant are “reasonable,” At the hearing, the Court determined that the Plaintiff’s Affidavit of Clarissa Pimentel, its fact witness, was sufficient to establish the prima facie case for reasonableness. Additionally, Plaintiff timely filed the medical bills 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. Pan Am Diagnostic Services, Inc. vs. United Automobile Ins. Co., 21 Fla. L. Weekly Supp. 200a (Broward Cty. Ct. 2013) citing to 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, lst 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.” Id. 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. Id. A plaintiff, may, but is not required to, produce an expert to establish the reasonableness of its charges. Id. citing to 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 Assn, Inc. v. Riquelme, 638 So.2d 605, 605 (Fla. 4th DCA 1994); Multicare, 12 Fla. L. Weekly Supp. at 33a; Kompothrecas v. Progressive Consumers Ins. Co., 8 Fla. L. Weekly Supp. 505a, 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 bills and further filed an affidavit from a fact witness, explaining how the Plaintiff’s price was set. Since the Plaintiff met its burden, the burden now shifts to the Defendant to establish a genuine issue of material fact. This court finds that Defendant failed to substantially impeach Plaintiff’s evidence and further failed to present competent, admissible evidence to rebut Plaintiff’s prima facie showing that their price was unreasonable and thus, Defendant did not meet its burden to establish a genuine issue of material fact.

In opposition, Defendant first filed the affidavits of its expert witnesses, Darell Spell and Dr. Michael Propper, M.D. to establish the unreasonableness of the Plaintiff’s price. Pursuant to Fla. Stat. §90.702(1)(2013), the party presenting expert opinion must demonstrate to the court that the expert’s opinion is based upon sufficient facts or data” and the testimony is the product of reliable principles and methods which the witness has applied reliably to the facts of the case. See Pan Am Diagnostic Services, Inc. vs. United Automobile Ins. Co., 21 Fla. L. Weekly Supp. 200a (Broward Cty. Ct. 2013).

Mr. Spell is not qualified to render an expert opinion on the charges of an MRI provider as set forth in Pro Imaging, Inc. v. State Farm Auto Ins, Co., 21 Fla. L. Weekly Supp. 590a (Broward Cty. Ct. 2014) citing to United Automobile Ins. Co. v. Hallandale Open MRI, Inc. Appellate Opinion, Case No. 12-19662 CACE, at 6 (17th Cir. Ct. Dec. 11, 2013) [21 Fla. L. Weekly Supp. 399d]; Pembroke Pines Physicians Associates v. State Farm Auto Ins. Co., 21 Fla. L. Weekly Supp. 703a (Broward Cty. Ct. 2014).

Further, Mr. Spell did not have sufficient facts or data upon which to render any opinions as to the reasonableness of the amount charged by the Plaintiff. In formulating his opinions, Mr. Spell relied on “MarketScan Research Database,” the Medicare Part B Physician Fee Schedule, the Fee Schedule in Florida Statute 627.736(5)(a)2f., the Florida Workers Compensation Fee Schedule, and the New Jersey Physician Fee Schedule for both the North and South regions. Mr. Spell also provided the data regarding the amounts billed by other providers in the geographic area where the services were provided in this case.¹ For example, for CPT code 72141, Mr. Spell provided the following data: 25% of providers bill at $1,761.36, 50% of providers bill at $2,332.08, and 80% of providers bill at $2,75234. Based on this data, this Court has noted that Plaintiff’s price of $2,180.00 is within the range of 25% – 50% of what other providers bill in the area or stated differently, more than 50% of medical providers in the Plaintiff’s area bill at a higher price than the Plaintiff. Notwithstanding, Mr. Spell opines that this data only shows the wide disparity between the amount that a provider may bill and the amount that a provider accepts in payments as he finds that the prevailing reimbursement rates are consistently in the range of 80% to 140% of Medicare Fee Schedule in the Plaintiff’s geographic area. In reaching his opinions, however, Mr. Spell utilized the data from “Marketscan Research Database” which is composed primarily of information on payments to medical providers who are under contract to receive a stream of business in exchange for contractual acceptance of a lower fee for services such as Health Maintenance Organization plans (HMO) or Preferred Provider Organizations (PPO) plans. Significantly, Mr. Spell did not provide any information to what extent any of this data specifically involves No-Fault or Medpay claims, if any. Further, Mr. Spell is unable to provide any information as those claims that were paid as a result of compromise, settlement, or partial exhaustion of benefits. Clearly, excluding such data skews the outcome and ignores the market reality, which is that a reasonable price represents a range of numbers. Mr. Spell did not provide any persuasive explanation as to why the Court should find that this obfuscating methodology of selection is reliable for the Court to allow this case to go to the jury.

In addition, Mr. Spell did not consider the evidence of usual and customary charges and payments accepted by the provider. Similarly, he excludes consideration of any amounts greater than 200% of Medicare in reaching his ultimate conclusion that an amount equal to 200% of Medicare Fee Schedule is the maximum reasonable charge. For example, in the summary provided by Mr. Spell, for CPT code 72141, 413 claims of the 3,660 claims were paid at a higher amount. And yet, these insurers, would have paid an unreasonable amount by doing so. In essence, Mr. Spell’s ultimate opinion ignores any data which would cause an increase in the outcome, and clearly, without any methodology, drew the line at 200% of Medicare Fee Schedule and cherry picks only whatever supports his ultimate conclusion. This type of methodology does not meet the Daubert standards.

Although not binding on this court, this Court is also persuaded by the uniformity of trial level decisions in finding specifically that Darrell Spell is not competent to testify on the issue of reasonableness of price. See, e,g., Pro Imaging Inc. v. State Farm Mutual Auto Ins., 21 Fla. L. Weekly Supp. 590a (Broward County, 2014)(Lee, J.); New Smyrna Imaging LLC v. State Farm Mutual Auto. Ins. Co., 20 Fla. L. Weekly Supp. 671a (Volusia Cty. Ct. 2013) (Sanders, J.); Pompano Beach Chiropractic Center, Inc. v. State Farm Mutual Auto. Ins., Inc., 19 Fla. L. Weekly Supp. 595b (Broward Cty. Ct. 2012) (Pratt, J.); Nadal Medical Center, Inc. v. Dairyland Ins. Co., 14 Fla. L. Weekly Supp. 895a (Hillsborough Cty. Ct. Nov. 1, 2007) (Fernandez, J.); Millenium Diagnostic Imaging Center, Inc. v. Progressive Auto Pro Ins. Co., 14 Fla. L. Weekly Supp. 795c (Miami-Dade Cty, Ct. 2007) (Gayles, J.); Spine &Rehab Medicine, P.A. v. Dairyland Ins. Co., 14 Fla. L. Weekly Supp. 504a (Hernando Cty. Ct. 2007) (Hitzemann, J.); Mitchell R. Pollak, M.D., P.A, v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 381b (Broward Cty. Ct. 2006) (Lee, J,); Spirelli Healthcare of Broward, Inc. v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 186a (Broward Cty, Ct. 2005) (Spechler, J.)

Similarly, Dr. Propper’s affidavit fails to meet the requirements of admissibility required by Fla, Stat. §90.702 (2013) in that his opinion is not based upon sufficient facts or data, is not the product of reliable principles and methods, and that Dr. Propper has not applied the principles and methods reliably to the facts of this case.

Although Dr. Propper’s Affidavit presents his qualifications, none of his work experience or qualifications were in the same or similar geographic region as the plaintiff’s services. Moreover nothing in his affidavit or his work experience attached shows that he would have the requisite knowledge about the MRI diagnostic market to proffer the statements or conclusions about MRI pricing or reimbursement in Dade County. His affidavit does not detail any work experience that would place him in the position to over see the setting of charges or systematically reviewing reimbursements for MRI services in order to support the broad brush statements in his affidavit. Further, in his affidavit, Dr. Propper states that since commercial insurances such as Blue Cross Blue Shield, HMO, PPO, Aetna, Travelers and Humana pay less than Medicare Fee Schedule amount, and rarely some PPOs pay at Medicare fee schedule amount the Medicare Fee Schedule amount is what he considers to be the maximum reasonable reimbursement in South Florida. The Affidavit does not reference any studies, analysis, calculations, surveys, data review, compilations or that Dr. Propper utilized any specialized skill which would make his opinion admissible pursuant to Daubert standards. At best, he is providing anecdotal information about his understanding of medical pricing for medical services in general without any explanation of how this applies to MRI diagnostic services. Moreover he has no credible basis to explain why No Fault insurers reimbursed plaintiff’s charges at the full amount other than to call them aberrations, As such his conclusion is not “based upon sufficient facts or data,” and his conclusions are not the “product of reliable principles and methods,” as required by Fla. Stat. §90.702.

For the reasons stated above, Defendant has not come forward with any admissible evidence demonstrating that the Plaintiffs price for the MRIs provided to the claimant is unreasonable.

ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED. Final Judgment be and the same is hereby entered in favor of the Plaintiff, COASTAL RADIOLOGY, LLC., as assignee of Manuel Marono, and against the Defendant, State Farm Mutual Automobile Insurance Company, in the total amount of $1,582.74 ($2,180 x 2 = $4,360; $4,360 @ 80% = $3,488.00, less prior payment of $1,905.26 = 1,582.74), plus applicable prejudgment and post judgment interest, for which let execution issue forthwith.

The Court hereby expressly reserves jurisdiction of those issues related to prevailing party attorney’s fees and costs in favor of Plaintiff.

__________________

¹Darrell Spell filed two affidavits, an original affidavit and an amended affidavit. Mr. Spell’s original affidavit, specifically paragraph 32 table 6, states that the amount billed by other providers may be considered relevant to the determination of reasonableness of charges and the amounts billed by other providers in the area in and around Miami, Florida were provided. Mr. Spell’s Amended Affidavit states that the amount billed by other providers in the area is not relevant to the determination of reasonableness of charges and the data were not included.