22 Fla. L. Weekly Supp. 132c

Online Reference: FLWSUPP 2201AFANInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary disposition — Opposing affidavit filed by insurer does not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charge where affidavit is conclusory and lacks foundation, and affiant is not qualified to render opinion on reasonableness of charge — Fact that Medicare and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge

HALLANDALE OPEN MRI, LLC, as assignee of Alvis Afanador, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-014231 CONO 73. July 28, 2014. Steven P. DeLuca, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Michael Rosenberg, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY DISPOSITION

THIS CAUSE came before the Court on July 28, 2014, for hearing of the Plaintiff’s Motion for Final Summary Disposition per Rule 7.135, 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:

Summary disposition was reserved by the court on 3/12/14. The Plaintiff is seeking final summary disposition as to all issues. The court will first address medical necessity and relatedness for ordering the MRI and then the court will address the reasonableness of the price of the MRI which are the only remaining issues in the case.

Medical Necessity and Related

The Plaintiff relies on the deposition of Defendant’s litigation adjuster, Jofer Faria, that was filed on 12/12/12 which was taken on 11/16/12. Mr. Faria stated in his deposition at page 49, lines 9-12, that the only issue in dispute is whether the Plaintiff charged a reasonable amount and whether State Farm reimbursed a reasonable amount. (See also page 51), In further support the Plaintiff filed the affidavit of Dr. Kern that explains why the ordering of the MRI was medically necessary and related to the car crash. The Defendant filed an affidavit of Dr. Michael Propper where he states the MRI should not be reimbursed since he was never provided with a copy of the MRI prescription. The court finds Dr. Propper’s affidavit defective, conclusory and deficient for many reasons including, but not limited to:

a) Dr. Propper sites no law or specific authority that supports his position that a prescription is required to order an MRI;

b) the Defendant never pled the lack of a prescription as an affirmative defense and the court will not allow this defense at this time; and

c) the record evidence in this case is that not only did the Plaintiff have a prescription but so did State Farm. In fact, State Farm provided a copy of it to the Plaintiff in response to Plaintiff’s request for production.

Thus, based on the above Plaintiff’s motion is granted as to medical necessity and relatedness.

Price

The only remaining issue is whether $1,650 for a cervical MRI without contrast, is within the range of what is “reasonable” as to price. According to the complaint, the amount in controversy is $421.47. The Defendant’s explanation of review explains the payment for this service was based on a reasonable amount. The Defendant’s obligation to pay a “reasonable” amount is support by the policy of insurance and the rest of the record such as the deposition of Mr. Faria at page 25. In this case, State Farm determined 200% of Medicare was reasonable (Faria pages 15-20, 24). The decision to use 200% of Medicare was made by a person unknown to Mr. Faria (pages 23-24).

The Defendant has not argued or pled it is entitled to pay based on 200% of Medicare Part B, as a matter of law. Nor has the Defendant amended its policy to take advantage of this safe harbor.

In support of Plaintiff’s Motion for Final Summary Disposition, Plaintiff argues the Plaintiff’s bill is reasonable and relies on the timely filed detailed affidavit of Norma Uziel, billing supervisor and corporate representative of the Plaintiff. It was filed on 1/30/14. The Plaintiff also relies on the affidavit of Mrs. Belkys Torres. The Plaintiff also relies upon the Defendant’s responses to Plaintiff’s request for admissions which indicate a large number of South Florida MRI centers charge the same or more than the Plaintiff and that State Farm approved more than $1650 for an MRI without contrast to other MRI centers.

In the affidavit Ms. Uziel attests, among other things, that Plaintiff’s charges were reasonable, and usual and customary, based on her personal knowledge of HALLANDALE OPEN MRI, LLC company’s billing practices, office procedures, collection practices, reimbursement trends, and amounts others were charging for similar services in the community. She has worked for the Plaintiff since 2005 and is responsible for Plaintiff’s billing. She has testified three times at trial for the Plaintiff and was able to opine as to price. She is aware of what many of the other MRI centers charge as well as what the hospitals charge. The Plaintiff’s charge is about the same or less than many MRI centers in the community. She is also aware of what 4 different publications state is a reasonable range for an MRI and the Plaintiff’s charges are within the range of those publications. She further attests HALLANDALE OPEN MRI, LLC regularly and consistently received reimbursements of 80% of its charge of $1,650.00 (or 100% if the policy contained medical payments) from No-Fault Insurers who did not apply the permissive 200% Medicare limited reimbursement or adopt same in their policies. The affidavit of Mrs. Torres is consisent with the affidavit of Ms. Uziel and the request for admissions confirm the Plaintiff’s charges are within the range fo what other MRI centers charge. Thus, it is undisputed the Plaintiff’s charges are within the range of what others charge and, in fact, State Farm has approved $1650 or more for an MRI of the spine without contrast. Any request for admissions for admissions not responded to has been deemed admitted as the Plaintiff received leave of court to propound more than 30 request for admissions on 10/5/12. In the deposition of Mr. Faria he admitted he had no evidence the Plaintiff’s charge was unreasonable at the time the payment was made or at any time before suit was filed (page 35).

The Plaintiff seeks summary disposition that the price was reasonable. In Pan Am Diagnostic Svcs., Inc. a/a/o Fritz Telusma v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. 17th Jud. Cir., October 1, 2013) Judge Lee opined:

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 33a. 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 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).

The Court finds the Plaintiff’s affidavits and the request for admissions satisfy Plaintiff’s burden to prove its charge for the MRIs at issue are within the range of what would be a reasonable charge for an MRI. United Automobile Insurance Company v. Hallandale Open (Antonette Williams) , Case No. 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. App December 11, 2013). Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So. 2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c]

In opposition, the Defendant relies upon the affidavit of Dr. Propper served on 7/24/14 after 5:00PM. Dr. Propper states the billed amount is unreasonable because it exceed 200% of Medicare and “Medicare is the number 1 reimburser for the State of Florida.” There was no other predicate, analysis, data, or basis for this conclusory opinion. Plaintiff argues the Defendant failed to establish a triable issue through Dr. Propper’s affidavit as it is legally insufficient for many reasons. This Court agrees with the Plaintiff. See Plantation Open MRI v. State Farm, 21 Fla. L. Weekly Supp. 589a (Fla. Broward County Court 2014, Judge Lee) where the court opined that testimony of medicare fee schedules without more is insufficient to raise a disputed issue of fact as to reasonableness of charge). See also Health Diagnostic v. United Auto, 21 Fla. L. Weekly Supp. 592a (Fla. Broward County Court 2014).

Once a party moving for Summary Disposition presents competent evidence to support its motion for Summary Disposition, that party is entitled to Summary Disposition unless the non-moving party can come forward with competent evidence sufficient to reveal a triable issue. United Automobile Insurance Company v. Hallandale Open (Antonette Williams) , Case No. 12-19662CACE (17th Cir. App December 11, 2013) [21 Fla. L. Weekly Supp. 399d]

Pursuant to Fla. Stat. §627.736(5)(a)(1), in determining a reasonable charge, “consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.” Here, Defendant has failed to present competent, admissible evidence to rebut Plaintiff’s prima facie showing that their charge was, in fact, reasonable as reasonable is a range and not a set number.

Dr. Proper’s affidavit reflects no experience in billing for medical services or the MRI industry. There were no documents attached to his affidavit. As a result, he court finds he is not competent to be an expert witness according to Fla. Stat. §90.702(2013) as his opinions are not based upon sufficient facts or data.

In his affidavit, Dr. Propper, a fact witness, completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider from PIP insurers that pay a reasonable amount. Similarly, he excludes consideration of any amounts above 200% of Medicare in reaching his ultimate conclusion that an amount equal to 200% of Medicare is a reasonable charge. In essence, Dr. Propper’s ultimate opinion excludes any data which could cause an increase in the outcome based almost exclusively on hearsay. In fact, Dr. Propper’s opinion were not accepted by Judge Robert Lee in the cases of Coastal Radiology v. State Farm, 12-21897 COCE 53 (Fla. Broward County Court, 2014) and in the Case of Pan Am v. State Farm, 12-14575 COCE 53 (Fla. Broward County Court, 2014). This court further adopts Judge Lee well reasoned legal analysis.

It is clear to this court based on the record the Plaintiff’s charge is within the range of what most MRI Providers charge for this CPT Code which is consistent with the record. Reasonable, according to the Defendant’s policy of insurance and the PIP statute, is not a set number. It is range. Propper’s affidavit is insufficient to create a triable issue.

Propper’s affidavit is nothing more than hearsay, conclusory, incomplete, does not have sufficient facts, data or analysis to support his lay opinions. Defendant has not provided any admissible competent evidence to create a triable issue as to whether the Plaintiff’s charge is outside of the range of what is reasonable.

To the extent Defendant relies upon Propper as a fact witness, the affidavit fails to present admissible evidence which would create a triable issue. The opinion offered that the charged amount is unreasonable is inadmissible lay opinion testimony. Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived, and usually involves matters such as distance, time, size, weight, form and identity. Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1991) citing Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So.2d 140 (Fla. 4th DCA 1985). See also United Automobile Insurance Company v. Miami Neurology Rehabilitation Specialists A/a/o Maria Broche, 19 Fla. L. Weekly Supp. 799a (11th Cir. App. June 19, 2012)(Testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness, and notbased on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702).

Thus, as a matter of law, the opinions offered by Dr. Prooper are not rationally based on his own perception and are not the type of lay opinions which can be relied upon by the Defendant. In addition, conclusory statements are not adequate to create a triable issue and are insufficient to avoid Summary Disposition. Essentially, Dr. Propper opines the charged amount is unreasonable because the charged amount exceeds the allowed amounts as set forth by Medicare. In Atkins v. Allstate, 382 So. 2d 1276 (Fla. 3d 1980) where the court held:

But the basic fact is that Medicare is a social welfare program and not an insurance or reimbursement plan within the everyday and ordinary meaning of these terms. Medicare was added to the existing Social Security laws in 1965 and as yet there have been few, if any, judicial decisions defining its scope.

The amounts paid by Medicare are set forth by the government. There is no presumption that the amount the government pays for medical services equates to a reasonable amount. The fact that Medicare pay less than the billed amount does not mean the Plaintiff’s charge is unreasonable without any additional evidence. Health insurers such as HMO and PPOs pay less but they provide the doctors with a flow of business, guaranteed payment and very low risk. Therefore, the fact an HMO or PPO pays less does not mean the Plaintiff’s charge is unreasonable. See Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D2650b].

If this court would accept the argument of the Defendant that the payors described in the affidavit pay less than the amount billed creates a triable issue then this would require the improper stacking of inferences. While this court will draw all possible reasonable inferences of material fact in favor of the Defendant, this court cannot find the inference that since Medicare and health insurance pay less than the billed amount there is a triable issue as to what is a reasonable charge. This would not be a reasonable inference to the exclusion of any other reasonable inference based on this record.

In this case, the Defendant paid based on exactly 200% of Medicare. It is well settled that in order to take advantage of the more limited reimbursement provided by Fla. Stat. §627.736(5)(a)(2)(f), the insurer must specify that method to the exclusion of any others. Geico General Insurance Co. v. Virtual Imaging Services, Inc. (“Virtual II ”), 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] aff’d __ So. 3d __, 2013 WL 3332385 (Fla. 2013); DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a].

In this case, the Defendant is not permitted to use the “200% Medicare” as the exclusive methodology to limit reimbursement unless it can demonstrate that amount is the maximum reasonable amount under some alternative means. Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55, 57 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a](“Furthermore, as section 627.736(5)(a)(2) provides that insurers “may” consult the Medicare fee schedule, it follows that, under the statute, insurers who choose not to do so have recourse to some alternative means for determining a reimbursement amount.”). The Defendant did not make this election or pled this defense. For the reasons stated above the Plaintiff’s Motion is hereby granted.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Disposition is GRANTED.