22 Fla. L. Weekly Supp. 646b

Online Reference: FLWSUPP 2205BRYAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary disposition — Opposing affidavits filed by insurer do not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charge where affidavits are self-serving, conclusory and lack foundation and affiants are not qualified to render opinion on reasonableness of MRI charges — Fact that Medicare, workers’ compensation, 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 Artemese Bryant, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-014787 CONO 73. December 10, 2014. Steven P. DeLuca, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Kyle Mixson, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY DISPOSITION AS TO PRICE

This cause came before the court, on October 24, 2014 and again on November 18, 2014 and again on December 10, 2014, after due notice to the parties, on Plaintiff’s Motion for Summary Disposition relative to whether the charge of $1650 was reasonable for the lumbar MRI without contrast (CPT Code 72148) performed in 2010. The court reserved summary disposition Rule 7.135 on 2/27/12 without objection. The amount in controversy is $407.10 which was calculated by taking the billed amount $1650, multiplying it by .8 and subtracting the payment of $912.90. After reviewing the pleadings, the affidavits of Ms. Uziel, Dr. Propper, and Mr. Spell, the deposition of Ms. Uziel, the Defendant’s adjuster Mary Downs, and Mr. Spell, the evidence, the rest of the record, and after hearing argument of counsel for the parties, the court finds no triable issue per Rule 7.135 and hereby grants Summary Disposition in favor of the Plaintiff as to price. The issue of medical necessity and related will be argued at a later date.

Analysis and findings of fact

The Plaintiff, Hallandale Open, sued State Farm Mutual Automobile Insurance Company (herein after State Farm) for breach of a contract of personal injury protection benefits under the Florida No Fault law in Small Claims Court. It is undisputed the Defendant’s policy requires the Defendant to pay 80% of all reasonable expenses. See Defendant’s explanation of review which is in the record as it is attached to the affidavit of Mr. Spell and the deposition of the adjuster Downs. The policy does not have a set number as to what it will pay for medical services. Thus, reasonable is a range. In this case, the Plaintiff billed $1650 for the MRI in question which took place in 2010 and argues its charge is within the range of what is reasonable. In fact, adjuster Downs did not know if the Plaintiff’s charge was unreasonable (page 11).

State Farm received the bill and paid based on 200% of the Participating Level of Medicare Part B, and not 80% of the billed amount. See Mr. Spell’s affidavit and the adjuster deposition and the Down’s transcript page 8. There is no record evidence that the Defendant specifically considered any factors other than the 2007 Medicare Part B fee schedule as required by the Defendant’s policy. It is undisputed the Defendant’s policy does not state it will pay claims based on 200% of medicare. Nor is it an affirmative defense that the Defendant will pay medical bills based on the fee limitations found in §627.736(5)(a)(2).

The amount tendered by the Defendant was not accepted as payment in full by the Plaintiff who, after serving a demand letter, sued State Farm for breach of contract for the balance. The Defendant filed an answer with the affirmative defense that it “properly issued payment to the Plaintiff pursuant to the policy terms and conditions and Fla. Stat. §627.736 as such Plaintiff is not entitled to any additional payment.”

The matter is ripe for Summary Disposition as there are no pending motions to strike, to supplement the record, and there has been sufficient time to complete reasonable discovery and any pending discovery would not be material to the issue before the court.

The court considered all arguments made by counsel in ruling on this matter.

Hallandale moved for Summary Disposition based on a detailed and competent affidavit of Ms. Uziel, billing supervisor, who, based on substantial showing, avers that the amount of Plaintiff’s charge of $1,650 per MRI is reasonable. The Defendant does not dispute receiving this bill.

Ms. Uziel has personal experience and knowledge of the MRI industry and what is a reasonable charge for an MRI. She is aware of what other MRI centers charge, what the Plaintiff has been paid, and she has relied on four (4) different authoritative publications to confirm the Plaintiff’s charge is within the range of what is reasonable. See §90.903 (17) and United Auto v. Hallandale Open a/a/o Antonette Williams, 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. Court 2013). Second tier certiorari was denied by the Fourth DCA. See 39 Fla. L. Weekly D1883c. Ms. Uziel has testified on three different occasions that the charged amount is reasonable in Broward County. There is no record evidence the charged amount is unreasonable when compared to what other MRI centers charge as stated in the affidavit of Ms. Uziel.

Pursuant to Rule 7.135 the Plaintiff would be entitled to summary disposition if there is no triable issue. See United Auto v. Hallandale Open a/a/o Antoneete Williams, 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. Court 2013). The Defendant may not defeat a motion for Summary Disposition by raising purely paper issues where the pleadings and evidentiary matters before the trial court show that defenses are without substance in fact or law. Hialeah Medical Assoc a/a/o Lexcano v. United Auto, 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. App. Court 2014). It is not sufficient for the opposing party to merely assert that a triable issue exists.

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 that Hallandale Open met its burden of establishing the reasonableness of the MRI charge based on the affidavit of Ms. Uziel which explains why $1650 is a reasonable charge for an MRI conducted in 2010 in Broward County. Since the Plaintiff met its burden, the burden now shifts to the Defendant to establish a triable issue.

The court finds State Farm did not meet its burden to establish a triable issue as to the reasonableness of the charge for the Plaintiff’s MRI. The affidavits of Mr. Spell and Dr. Propper stating the billed amount is unreasonable is self-serving, conclusory, devoid of sufficient facts or data, is based on inadmissible hearsay, and lacks reliable principles, methodology, foundation or the basis for their opinions that the amount charged was unreasonable. Their opinions are being rejected because the methodology is unsupported, they not relying on relevant factors, and they are considered unqualified to give opinions on the reasonableness of the MRI charges. Further, there were no non-hearsay relevant documents attached to their affidavits. A conclusory affidavit of a party is insufficient to create a disputed issue of fact. Master Tech v. Mastec, 49 So.3d 789, 791 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2381a]. A party does not create a disputed issue of fact by merely stating factual conclusions. Id.

There is a long list of county and circuit court judges that refuse to consider Mr. Spell’s affidavit sufficient to defeat either Summary Judgment or Summary Disposition on the issue of price, including the appellate decision of State Farm v. Imaging Center of Pensacola, 21 Fla. L. Weekly Supp. 979a (Fla. 1st Circ. Court 2014), Broward Rehab Center a/a/o Meloche v. State Farm, Case number 12-007151 COCE 56 (Fla. Broward County Court 2014, Judge Pratt); Pro Imaging v. State Farm, 21 Fla. L. Weekly Supp. 590a (Fla. Broward County Court 2014, Judge Lee); Hallandale Open a/a/o Ian Duncan v. State Farm, case number 11-014681 CONO 73 (Fla. Broward County Court 2014, Judge DeLuca) [21 Fla. L. Weekly Supp. 1080a]; Hallandale Open a/a/o Ulysses Moore v. State Farm, Case number 12-5953 CONO 71 (Fla. Broward County Court 2014, Judge Schiff) [21 Fla. L. Weekly Supp. 812a]; Hallandale Open a/a/o Michael Cohen v. State Farm, Case number 13-018070 COCE 51 (Fla. Broward County Court 2014, Judge Dishowitz); Millennium Radiology, LLC (Butler) v. State Farm, 13-008891 CONO 70 (Fla. Broward County Court 2014, Judge Fry) [21 Fla. L. Weekly Supp. 811a]; Hallandale Open (Duncan) v. State Farm, 11-014681 CONO 73 (Fla. Broward County Court 2014, Judge DeLuca) [21 Fla. L. Weekly Supp. 1080a]; Miami Dade County MRI a/a/o Bouzo v. State Farm, Case number 12-08665 SP 23 (02) (Fla. Dade County Court Judge Caryn Schwartz); Pan Am (Cole) v. State Farm, 12-21911 COCE 53 (Fla. Broward Cty Court 2014, Judge Lee); Roberto Rivera-Morales v. State Farm, 22 Fla. L. Weekly Supp. 271a (Fla. Dade Cty Court 2014). This court agrees with the other judges.

As it relates to the vague affidavit of Dr. Propper, this court has previously rejected his opinion. See Hallandale Open (Alvis Afanador) v. State Farm, 22 Fla. L. Weekly Supp. 132c (Fla. Broward County 2014). Additionally, Judge Robert Lee rejected the opinions of Dr. Propper in the numerous cases of Pan Am Diagnostic (Giji Kurian) v. State Farm, 12 21929 COCE 53 (Fla. Broward County Court 2014), Pan Am Diagnostic (Dana Jackson) v. State Farm, 12-14575 COCE 53 (Fla. Broward County Court 2014), Coastal Radiology (Ramirez) v. State Farm, 22 Fla. L. Weekly Supp. 167 (Fla. Broward County Court 2014), and Coastal Radiology (Daniel Flores) v. State Farm, 12-21897 COCE 53 (Fla. Broward County Court 2014). Judge Zeller rejected the opinions of Dr. Propper and Mr. Spell in the case of Coastal Radiology v. State Farm, 22 Fla. L. Weekly Supp. 166a (Fla. Broward Cty Court 2014). Judge Gonzalez-Paulson rejected his opinion in the case of Roberto Rivera Morales MD a/a/o Humberto Clavijo v. State Farm, case number 12-03614 SP 26 (03). The court compared the Dr. Propper affidavits with the rulings and the affidavit filed in this same is very similar. This court agrees with the well reasoned opinions of Judges Lee, Zeller, and Gonzalez-Paulson and adopts their analysis and conclusions in those cases.

Mr. Spell’s affidavit indicates the Plaintiff’s charge is approximately at the 25th percentile which means approximately 75% of the other MRI centers charge the same or more than the Plaintiff which is consistent with the affidavit of Mrs. Uziel and supports the Plaintiff’s argument the charged amount is reasonable.

Both defense affidavits fail to provide what MRI providers accept as payment in full, what PIP insurers pay when the insurer pays based on a reasonable amount, what out of network health insurers pay, a factual basis to establish they are qualified to give any opinions on what a reasonable charge is for an MRI in South Florida in 2010, an analysis of how they arrived at their opinions, and they did not attach any of the documents they relied upon to support their opinions.

Based on the above and the record, there is no evidence that Mr. Spell or Dr. Propper are qualified to give any opinions in this case on what a reasonable charge is for an MRI conducted in 2010 in South Florida. Their knowledge of what certain payors pay for MRIs do not make them qualified to state a billed amount is unreasonable. The defense experts are not qualified to opine as an expert on what is a reasonable charge according to Fla. Stat. §90.702. Their testimony is not based upon sufficient facts or data. Their testimony is not the product of reliable principles. Since there is a lack of sufficient facts ro data and there is a lack of reliable principles and methods there can be no reliable application of them. See Giaimo v. Florida Autosport, 39 Fla. L. Weekly D2484a (Fla. 1st DCA 2014). As such, the court rejects their “expert” opinions and their opinions will be considered as lay witnesses by this court.

Opinion testimony of a lay witnesses 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 not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702). As a lay witness, the only information the defense experts provide is knowledge of reimbursement levels by the payors mentioned in the affidavits. They cannot provide an ultimate opinion as to whether the Plaintiff’s charge is reasonable. Their opinion as to what is a reasonable payment is not relevant as the issue is whether the charged amount is within the range of what is reasonable.

The Defendant is not permitted to invoke the payment limitations of §627.736(5)(a)(2) without complying with the provisions of Kingsway v. Ocean Health, 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] as §627.736(5)(a)(2) is a payment limitation.

The fact that the PIP statute has a limitation of 200% of medicare under F.S. §627.736(5)(a)(2) is irrelevant as the Defendant has not alleged it paid pursuant to §627.736(5)(a)(2) and 200% of medicare is not a factor to consider within F.S. §627.736(5)(a)(1) which has specific factors. Likewise, whether the Defendant paid a reasonable amount is not an issue for consideration for the jury as the Plaintiff has the burden to prove its charge is reasonable. The Defendant does not have to prove it paid a reasonable amount. The Plaintiff must prove its charge is within the range of what is reasonable. Reasonable is not a set number.

Had the legislature wanted courts to consider 200% of medicare in an analysis of what is a reasonable charge for a medical provider it would have expressly provided for this provision as the legislature specifically addressed 200% of medicare in §627.736(5)(a)(2). See SOCC v. State Farm, 95 So.3d (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a]. Had the legislature wanted every medical bill to be determined by a jury where the provider charged more than Medicare, workers compensation, or in-network health insurers, the legislature would have expressly done so. The purpose of the no fault scheme is to provide swift and virtually automatic payment so that the injured may get on with his life without undue financial interruption. Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla. 2000) [25 Fla. L. Weekly S1103a]; Nichols v. State Farm, 851 So.2d 742 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1404a]; United v. Stat Technologies, 787 So.2d 920 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D1237b], Government Employees v. Gonzolez, 512 So.2d 269 (Fla. 3d DCA 1987); Allstate v. Holy Cross Hospital, 32 Fla. L. Weekly S453a (Fla. 2007); USAA Casualty Insurance Co. v. Shelton, 932 So.2d 605 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1798a].

Thus, based on Mr. Spell and Dr. Propper’s affidavits, there is simply no competent admissible evidence to create a triable issue that the charged amount was unreasonable. The fact that Medicare, Workers Compensation, etc., allow less than the amount billed by the Plaintiff in this case, by itself, is not sufficient to create a triable issue that the Plaintiff’s charge was unreasonable. See Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D2650b] and State Farm v. New Smyrna Imaging a/a/o Ryan Campbell, Case Number 2013-10005-APCC (Fla. 7th Circuit Court 2014) [22 Fla. L. Weekly Supp. 508a]. The Defendant’s affidavits fail to set forth a valid basis to explain why the Plaintiff’s charge is unreasonable simply because Medicare, workers compensation, etc. pay less. In fact, the Defendant cannot point to one Broward County Judge that agrees with this argument.

State Farm has not rebutted this evidence in the record or offered any proof that the charge is unreasonable, other than the self serving conclusory affidavits of Mr. Spell and Dr. Propper. Finding the Plaintiff’s charge is unreasonable based on what Medicare, Workers Compensation, etc. allow would require the improper stacking of inferences as Medicare and Workers Compensation pay what the government sets forth without any regard to what is a reasonable amount for a particular service. 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, workers compensation, 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.

Finally, State Farm’s reliance on Medicare is not persuasive as Medicare is social welfare. See 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.

In the appellate decision of Hialeah Medical Assoc a/a/o Lexcano v. United Auto, 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. App. Court 2014) the appellate court held “Medicare fee schedules are not relevant in PIP cases, and should not be used.” In this case, State Farm originally paid the Plaintiff’s bill based exclusively on 200% of Medicare Participating Level of Part B and no other factors were used. The affidavits of Mr. Spell and Dr. Propper do not create a triable issue because their opinions are not based on relevant or sufficient data.

Accordingly, Hallandale Open’s Motion for Summary Disposition is hereby granted as to price only for the reasons set forth above, in the documents filed by the Plaintiff, and the additional reasons argued at the hearing. Plaintiff’s Motion for Attorney’s fees for denying request for admission number 9 is deferred to a later date.