22 Fla. L. Weekly Supp. 1079c
Online Reference: FLWSUPP 2209CARGInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Where PIP policy does not clearly and unambiguously elect permissive statutory fee schedule, insurer cannot rely on fee schedule to determine reasonableness of charges — Relatedness and necessity of charges — Insurer that paid medical provider’s bills at reduced amount without challenging relatedness or necessity of charges cannot raise those issues for first time after provider files suit for underpayment of bills
DR. ALLAN MANDELL, P.A., d/b/a MANDELL CHIROPRACTIC CENTRE, a/a/o George Cargil, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 13-14980 SP 05 (01). March 30, 2015. Shelley J. Kravitz, Judge.Order Granting Plaintiff’s Motion for Partial SummaryJudgment and Motion for Final Summary Judgment
THIS CAUSE came before the Court on July 21, 2014 on Plaintiff’s Motion for Partial Summary Judgment and Motion for Final Summary Judgment and was argued again on March 19, 2015. The Court having heard argument of counsel, having reviewed the motions, the affidavits submitted by both parties, the entire court file, including the deposition transcript of the litigation adjuster, the insurance policy, the Explanations of Review and having reviewed relevant legal authority and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law:Findings of Fact
George Cargil, was involved in a motor vehicle accident on August 19, 2009 while in a vehicle insured by the Defendant, State Farm Mutual Automobile Insurance Company. The policy in effect provided for personal injury protection (PIP) coverage under the Florida No Fault Statute. George Cargil received medical services from the Plaintiff, Mandell Chiropractic Center. The subject policy of insurance required Defendant to pay 80% of all reasonable expenses. Defendant issued payment to Plaintiff for its services at 80% of 200% of the Medicare Part B Fee Schedule. The amount in controversy is the difference between 80% of the billed amount and the paid amount.Standard
Summary Judgment is proper if no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. See County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. There were no affirmative defenses alleged in the subject case.Conclusions of Law
The issues for summary judgment are whether Plaintiff’s services are reasonable, related and medically necessary. In support of its Motion for Summary Judgment, Plaintiff filed the affidavit of Dr. Allan Mandell and Nallivy Fernandez. Dr. Allan Mandell opined that based upon the complaints, injuries and symptoms Mr. Cargill exhibited during his examinations and taking into consideration the history and past medical history, the treatment and injuries were medically necessary and related to the subject accident. Both Dr. Mandell, a chiropractor since 1986, and Nallivy Fernandez, a billing clerk for the Plaintiff since 1995, both stated in their affidavits that the charges were reasonable, that they fell within the range of what was usually and customarily charged within the medical community and they explained what factors were considered. The Court finds that the Plaintiff has met its burden of establishing a prima facie case. As an initial matter, the Court finds that the provisions of §627.736(5)(a)(2)f., Fla. Stats. (2008) do not apply in this case, since State Farm did not elect that alternative methodology as its method for determining the reasonableness of medical bills and paying in accordance therewith, as evidenced by its adjuster’s deposition testimony and its Explanation of Review. This Court finds that an insurer may not rely on the Medicare Part B Fee Schedules contained within §627.736(5)(a)(2)f., Fla. Stats. (2008) unless that methodology has been clearly and unambiguously elected in the policy at issue. See GEICO v. Virtual Imaging Svcs., Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].
In determining whether a charge for a particular service or treatment is reasonable, there are two (2) methods by which an insurer may calculate reimbursement methods; i) the fact dependent method under 627.736(5)(a)1. or ii) by utilizing the permissive fee schedules under 627.736(5)(a)2. These methods have been described as separate and distinct methods for evaluating the statute’s reasonable expense coverage mandate under Fla. Stat. 627.736(1)(a). The insurer must choose the one payment methodology it will utilize for reimbursement and cannot alternate between the two methods.
The methodologies are separate and distinct. Defendant’s affidavit of claim representative Steve Yacorps is merely a belated attempt to use the fact defendant method under 627.736(5)(a)(1). Additionally, the Defendant filed an affidavit of Dr. Glen Siegel to challenge the relatedness and medical necessity of the treatment. This Court notes that the Defendant, prior to the filing of this affidavit, and confirmed by the deposition testimony of its litigation adjuster, never disputed the relation and medical necessity of the treatment. No denial of benefits were ever based on this allegation and Defendant paid all of Plaintiff’s charges, although at a reduced rate. Defendant contends it can challenge relatedness and necessity at any time pursuant to F.S. 627.736(4)(b). Dr. Siegel’s peer review was done on May 31, 2014 and his affidavit was done in July 11, 2014 nearly five (5) years after the date of accident.
In this Court’s opinion that when the legislature created 627.736(4)(b), that they did not intend for insurers to be able to retroactively deny previously paid bills, merely to defend a lawsuit on other grounds. In the case at bar the Plaintiff filed suit for underpayment of its bill. Waiting until suit is filed to question, for the first time, whether a bill it paid was necessary/related, is inconsistent with the legislative intent of Florida’s PIP statute. Most certainly, the carrier has an obligation to timely review its payment, and promptly notify the insured if it has paid a bill that it now believes was not medically necessary/related, and therefore not a covered loss.
ACCORDINGLY, it is hereby;
ORDERED and ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment and Final Summary Judgment are GRANTED. The Plaintiff shall submit a Final Judgment to the Court.
