22 Fla. L. Weekly Supp. 149a
Online Reference: FLWSUPP 2201SAINInsurance — Personal injury protection — Summary judgment — Reasonableness of charges — Medical provider met its burden of proving charge for MRI was reasonable — Opposing affidavit of non-expert that is conclusory and lacks foundation for affiant’s opinion is insufficient to create genuine issue of material fact and avoid summary judgment
HALLANDALE OPEN MRI, LLC, as assignee of Jean Wilkens Saint-Ange, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-006332 CONO 70. June 16, 2014. Fry, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Russel Kolodziej, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on June 11, 2014, for the second hearing of the Plaintiff’s Motion for Final Summary Judgment pursuant to Rule 1.150, 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:
Background
The Plaintiff filed suit in small claims court because the Defendant did not pay 80% of the billed amount for the MRI in question. In this case, the Defendant agreed the ordering of the MRI was medical necessity and related. Therefore, they are no longer issues. See the court order of April 23, 2014. Thus, the only remaining issue is whether $1,650 is within the range of what is “reasonable” as to the price for an MRI of the right shoulder without contrast. In response to the Plaintiff’s bill, the Defendant paid $869.80. Payment was made based on 80% of 200% of Medicare Part B, 2007. (See page 11 of the May 23, 2014 O’Hara deposition transcript). The amount in controversy is $481.78.
Procedural History
This court first heard argument on April 23, 2014 on Plaintiff’s Motion for Summary Judgment and granted Plaintiff’s motion finding the Plaintiff’s affidavit was sufficient to meet its prima facie burden since reasonableness of a charge is a range and not one set number. The court found the Defendant’s affidavit of Mr. O’Hara, who is an employee and litigation adjuster for the Defendant, insufficient, conclusory and self serving. There were no documents attached and there was no analysis provided by Mr. O’Hara. After the hearing of April 23, 2014 the Defendant sought leave of court to file an amended affidavit of Mr. O’Hara in order to correct any insufficiencies. The court granted the Defendant’s request over the objection of the Plaintiff and allowed the Defendant to file an amended affidavit. The Defendant filed an amended affidavit. The Plaintiff deposed Mr. O’Hara for a second time on May 23, 2014 and filed the transcript with the court on June 9, 2014 to oppose his amended affidavit.
On April 23, 2014, the court denied the Defendant’s Motion for Summary Judgment as to whether the Defendant’s policy of insurance, UAIC 200(7/11), properly allowed the Defendant to issue payment based on §627.736(5)(a)(2) as a matter of law. There were no endorsements attached to this policy relative to payment methodology. The Court found the Defendant did not make a clear election in its policy of insurance. 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].
Continued Summary Judgment Hearing of June 11, 2014
This matter is now before the court again in order for the court to consider the amended affidavit of Mr. O’Hara. This matter is once again ripe and there are no motions to continue filed and all reasonable discovery has been complied with by the parties. Mr. O’Hara stated his opinions are now final. (See page 51 of the May 23, 2014 O’Hara deposition transcript).
Once again, in support of Plaintiff’s Motion for Final Summary Judgment, Plaintiff relied on: the affidavit of Norma Uziel; Plaintiff’s request for admissions; and the deposition transcripts of the Defendant’s witness, John O’Hara along with the deposition exhibits. The Defendant filed two affidavits of Mr. John O’Hara.
Plaintiff’s Proof
Hallandale, in moving for Summary Judgment, filed the detailed and competent affidavit of Ms. Uziel, billing supervisor, who, based on substantial showing, avers, amongst other allegations, that the amount of Plaintiff’s charge of $1,650 is reasonable. Ms. Uziel has personal experience and knowledge of the MRI industry and what is a reasonable charge for an MRI. She has testified three times. The charged amount has not changed since 2001. She is aware of what other MRI centers charge, what the Plaintiff has been paid, and she has relied on four (4) different publications to confirm the Plaintiff’s charge is within the range of what is reasonable. The Plaintiff also relies on the MRI request for admissions dated November 28, 2012 which is deemed admitted because the Defendant did not comply with the unopposed court order dated December 17, 2012 requiring the Defendant to respond to the request for admissions within 30 days of December 12, 2012. The Plaintiff also relies on the deposition of Mr. O’Hara and the deposition exhibits. Mr. O’Hara admits the Plaintiff’s charge is within the basic range of what other MRI centers charge (See page 8 of the May 23, 2014 O’Hara deposition transcript).
Defendant’s Proof
The amended affidavit of Mr. O’Hara states, amongst other things, in his personal review of the file, his personal experience adjusting and handling claims for MRI service and reviewing charges submitted and amounts reimbursed, his personal knowledge and experience gained while working in the insurance industry, his personal experience in handling and adjusting thousands of PIP claims in South Florida, and his personal knowledge of the business practices and operating procedures of the Defendant and in adjusting PIP insurance, that the Plaintiff’s charge was unreasonable. In the affidavit of Mr. O’Hara he states he considered Medicare, Florida Workers Compensation, Tricare/Champus, Federal Workers Compensation, six health insurers and two competing PIP insurers. He reviewed the factors of what is reasonable based on §627.736(5)(a)(1). Thus, based on the information in his affidavit, Mr. O’Hara is of the belief the Plaintiff’s charge was not usual, customary or reasonable as to price.
Analysis
The court finds the affidavit of Ms. Uziel, the Plaintiff’s request for admissions, and the depositions of Mr. O’Hara meets the Plaintiff’s prima facie burden to establish the Plaintiff’s charge is within the range of reasonable. See Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So.2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c] and 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) where 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 satisfy Plaintiff’s burden to prove its charges were reasonable. United Automobile Insurance Company v. Hallandale Open MRI, LLC (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, Defendant relies upon the affidavit of John O’Hara served on April 15, 2014 and April 29, 2014. Plaintiff argues the Defendant still failed to establish genuine issue of material fact through Mr. O’Hara’s amended affidavit. This Court agrees with the Plaintiff.
Once a party moving for Summary Judgment presents competent evidence to support its motion for Summary Judgment, that party is entitled to Summary Judgment unless the non-moving party can come forward with competent evidence sufficient to reveal a genuine issue of material fact.
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 its charge was, in fact, reasonable,
Mr. O’Hara was not tendered as an expert by the Defendant at the hearing and, if he was tendered as an expert, the court finds he is not competent to be an expert witness according to Fla. Stat. §90.702(1)(2013) as his opinions are not based upon sufficient facts or data.
In his affidavit, Mr. O’Hara, a fact witness, completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider. Similarly, he excludes consideration of any amounts above 200% of Medicare in reaching his ultimate conclusion. In essence, Mr. O’Hara’s ultimate opinion excludes any data which could cause an increase in the outcome. Insurers that have properly amended their policy to pay claims based on 200% of Medicare have elected this safe harbor. See §627.736(5). The Defendant cannot take advantage of this law to create a genuine issue of material fact since the Defendant did not make this express election in its policy of insurance.
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. Mr. O’Hara’s affidavit was insufficient to create a genuine issue of material fact. Essentially, Mr. O’Hara states in his affidavit that he has knowledge and experience in the insurance industry but he has no relevant knowledge or experience in the MRI field. (See page 13 of the May 23, 2014 O’Hara deposition transcript).
The fact that he has knowledge as to what United Auto has paid in the past does not mean the Plaintiff’s charge is unreasonable. His amended affidavit is nothing more than hearsay and it is conclusory without any facts, data or analysis to support his lay opinions. Interestingly, he does admit in his deposition the Plaintiff’s charge is within the range of what most other MRI centers charge. (See page 8 of the May 23, 2014 O’Hara deposition transcript). He admits United Auto has allowed charges in excess of $1,650 from other MRI centers and United Auto has allowed more than 200% of Medicare. (See pages 14-26 of the May 23, 2014 O’Hara deposition transcript).
As it relates to his opinions as to what other PIP insurers pay, Mr. O’Hara did not bring any documents to his deposition as required in the decus tecum to support his opinion and he did not attach any documents to his affidavit. (See pages 26-31 of the May 23, 2014 O’Hara deposition transcript). He never worked for these other PIP insures. His allegations are based on hearsay. He did not know if the payment applied to the CPT code at issue. As such, the court will not consider this evidence. As it relates to health insurance, Mr. O’Hara has never worked for an HMO or PPO or any health insurance company. (See page 31 of the May 23, 2014 O’Hara deposition transcript). He did not know what any specific health insurer would pay for the CPT code at issue. (See page 33 of the May 23, 2014 O’Hara deposition transcript). He did not bring any documents with him or attach any documents to his affidavit.
To the extent Defendant relies upon Mr. O’Hara, as its corporate designee and fact witness, the testimony and affidavit fail to present admissible evidence which would create a genuine issue of material fact. The opinion offered that the charged amount is neither usual and customary nor reasonable as to price 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 not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702). Thus, as a matter of law, the opinion offered by Mr. O’Hara is 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 an issue of fact and are insufficient to avoid Summary Judgment.
Mr. O’Hara alleges since Medicare, Workers Compensation, Tricare/Champus, etc. pay less than the billed amount means the Plaintiff’s charge is unreasonable. (See page 45-46 of the May 23, 2014 O’Hara deposition transcript). The court does not agree with this proposition and there is no law to support it. Reasonable is a range and not a set number.
The Defendant’s proposition would require the improper stacking of inferences as Medicare, Tricare/Champus and Workers Compensation 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, Workers Compensation, and Tricare pay less than the billed amount there is a genuine issue of material 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. Green House Inc. v. Thiermann, 288 So.2d 566, 568 (Fla. 2d DCA 1974). See also Voelker v. Combines Insurance Co., 73 So.2d 403, 407 (Fla. 1954)(observing the rule providing that an inference may not be drawn from another inference is designed to protect litigants from verdicts or judgments based on speculation).
Even if the Defendant could establish health insurers such as HMO and PPOs pay less and the medical community accepts these reduced amounts this argument, without more does not mean the Plaintiff’s charge is unreasonable because, in exchange for a discount, health insurers provide the doctors with a flow of business, guaranteed payment and very low risk. See Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D2650b].
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED.
