22 Fla. L. Weekly Supp. 851a
Online Reference: FLWSUPP 2207VILAInsurance — 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 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 private 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 Carnes Vilatte, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-018411 COCE (52). January 13, 2015. Giuseppina Miranda, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Russell Kolodziej, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AS TO PRICE
This cause came before the court, on January 7, 2015, after due notice to the parties, on Plaintiff’s Motion for Summary Judgment relative to whether the charge of $1650 was reasonable for the cervical MRI without contrast (CPT Code 72141) performed in 2011. The amount in controversy is $459.70 which was calculated by taking the billed amount $1650, multiplying it by .8 and subtracting the payment of $860.30. After reviewing the pleadings, the affidavits of Ms. Uziel, Mrs. Torres, the deposition of Mrs. Torres, the deposition of Ms. Shadee, and Dr. Dauer, the evidence, the Plaintiff’s request for admissions and the Defendant’s responses, the rest of the record, and after hearing argument of counsel for the parties, the court finds no issue of material fact and hereby grants Summary Judgment in favor of the Plaintiff as to price. The issue of medical necessity and related was not an issue per agreement as the Defendant admitted it in response to Plaintiff’s request for admissions. The affidavit of Lizbeth Velazquez was withdrawn by the Defendant and will not be considered by the court.
Analysis and findings of fact
The Plaintiff, Hallandale Open, sued United Automobile Insurance Company (herein after United) 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. Thus, reasonable is a range. In this case, the Plaintiff billed $1650 for the MRI in question which took place in 2011 and argues its charge is within the range of what is reasonable. It was undisputed United received the bill and paid it based on 200% of the Participating Level of Medicare Part B, and not 80% of the billed amount. The amount tendered by the Defendant was not accepted as payment in full by the Plaintiff who, after serving a demand letter, sued United for breach of contract for the balance. The matter is ripe for Summary Judgment as there are no pending timely 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 parties have mediated and arbitrated. The Order setting Pre-Trial Conference and Deadlines etc. was entered on 8/19/14. The expert witnesses were to be listed by 9/18/14. The Pre-Trial Conference is scheduled for 2/17/14.
The court considered all arguments made by counsel in ruling on this matter and the arguments made in the Plaintiff’s motion.
Hallandale moves for Summary Judgment 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.
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 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 Antoneete 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. Her affidavits have been accepted by at least 12 County Court Judges. See Hallandale Open v. United Auto, 22 Fla. L. Weekly Supp. 149a (Fla. Broward Cty Court 2014); Hallandale Open v. State Farm, 22 Fla. L. Weekly Supp. 140a (Fla. Broward Cty Court 2014); Hallandale Open v. State Farm, 21 Fla. L. Weekly Supp. 1080a (Fla. Broward Cty Court 2014); etc. There is no record evidence and no dispute that the charged amount is unreasonable when compared to what other MRI centers charge as stated in the affidavit of Ms. Uziel. The Defendant admitted the typical charge it received for MRIs was between $1500 and $2500 in response to Plaintiff’s request for admissions. Based on the entire record there is no evidence to dispute the fact the Plaintiff’s charge is within the range of other specific MRI centers and significantly less than what hospitals charge for MRIs.
The Defendant may not defeat a motion for Summary Judgment 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 question of fact exists.
The Plaintiff seeks Summary Judgment that the price was reasonable. In Pan Am Diagnostic Svcs., Inc. a/a/o Fritz Telusma v. United Auto. Insurance 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 Insurance 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. Insurance Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (11th Cir. Court 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 Insurance 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 Insurance Co., 8 Fla. L. Weekly Supp. 505a, 506 (Sarasota Cty. Court. 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 and the responses to the request for admissions which explains why $1650 is a reasonable charge for an MRI conducted in 2011 in Broward County. Since the Plaintiff met its burden, the burden now shifts to the Defendant to establish a question of fact.
The court finds United did not meet its burden to establish a genuine issue of material fact as to the reasonableness of the charge for the Plaintiff’s MRI. The affidavit of Dr. Dauer 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. His opinion is being rejected because the methodology is unsupported, he is not relying on relevant factors, and thus, he would be considered unqualified to give ultimate opinions on the reasonableness of the MRI charges. The affidavit fails to establish he is competent to testify to matters stated therein as required by Rule 1.510. He did not elaborate beyond his personal office.
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.
Dauer’s affidavit fails to indicate what any MRI providers, other than the Dauer’s person approximate charge, what other 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 he is qualified to give any opinions on what a reasonable charge is for an MRI in South Florida in 2011, an analysis of how he arrived at his opinion, and he did not attach any of the documents they relied upon to support their opinions. It is not sufficient to create a genuine issue of material fact simply because the Defendant found one MRI center that charges based on 200% of Medicare.
Based on the above and the record, there is no evidence that Dr. Dauer is qualified to give any opinions in this case on what a reasonable charge is for an MRI conducted in 2011 in South Florida. His statement of what Medicare allows and what Health Insurers allow is simply insufficient. His knowledge of what medicare and what some private insurance pay for MRIs does not make them qualified to state a billed amount is unreasonable as there is no methodology, analysis. The defense expert is not qualified to opine as an expert on what is a reasonable charge according to Fla. Stat. §90.702. His testimony is not based upon sufficient facts or data. His testimony is not the product of reliable principles. Since there is a lack of sufficient facts or 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 Insurance 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 expert provide is knowledge of reimbursement levels by the payors mentioned in the affidavit. He cannot provide an ultimate opinion as to whether the Plaintiff’s charge is reasonable.
Thus, based on Dr. Dauer’s affidavit, there is simply no competent admissible evidence to create a question of fact that the charged amount was unreasonable. The fact that Medicare and health insurance allow less than the amount billed by the Plaintiff in this case, by itself, is not sufficient to create a question of fact 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 affidavit fails to set forth a valid basis to explain why the Plaintiff’s charge is unreasonable simply because Medicare and health insurance pay less. In fact, the Defendant cannot point to one Broward County Judge that agrees with this argument. Insurance companies do not get to determine what is a reasonable charge in the medical community based exclusively on what Medicare other insurance companies pay for those services.
United 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 Dr. Dauer. Finding the Plaintiff’s charge is unreasonable based on what Medicare and private insurance allow would require the improper stacking of inferences as Medicare pays 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 and health insurance pay less than the billed amount, there is a question of fact 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, United’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.” The affidavit of Dr. Dauer does not create a question of fact because their opinions are not based on relevant or sufficient data.
Defendant’s ore tenus motion to file a new affidavit of Dr. Dauer is denied for the reasons argued at the hearing.
Accordingly, Hallandale Open’s Motion for Summary Judgment 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.
