22 Fla. L. Weekly Supp. 477a
Online Reference: FLWSUPP 2204DIEUInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charges where affidavit is inadmissible lay opinion testimony, and opinions are not rationally based on affiant’s own perceptions — Where PIP policy does not elect permissive statutory fee schedule, insurer may not rely exclusively on statutory fee schedule to calculate reimbursement of reasonable charge
HIGH DEFINITION MOBILE MRI, INC., as assignee of Jean Dieujuste, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-14694 COCE 53. September 23, 2013. Robert W. Lee, Judge. Counsel: Todd S. Link, Boyar & Freeman, P.A., Coral Springs; and Michael Feinman, Fort Lauderdale, for Plaintiff. Claudia Dominguez, Roig, Tutan, Rosenberg, Martin & Stoller, PA, Deerfield Beach, for Defendant.
FINAL SUMMARY JUDGMENTIN FAVOR OF PLAINTIFF
This cause, having come before the Court on September 4, 2013, for hearing on Plaintiff’s Motion for Final Summary Judgment, 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:
Through a Notice of Withdrawal served and filed on August 30, 2013, the Defendant withdrew Michael Mathesie, D.C., their only expert witness on the issues of relatedness and medical necessity.
Additionally, at the hearing on September 4, 2013 counsel for Defendant stipulated to relatedness, medical necessity, the occurrence of the motor vehicle accident in this case, and further stipulated that the only remaining issue in the case was that of the reasonableness of the Plaintiff’s charge of $1,900 for a cervical MRI and the reasonableness of the Plaintiff’s charge of $1,950 for a lumbar MRI.
As summary judgment evidence the Plaintiff relied on the filed affidavit and deposition of Hebreu Dessalines, the corporate vice president and billing manager of Plaintiff. The factual basis of the affidavit and deposition testimony were derived from Mr. Dessalines’s personal knowledge and supporting documentation was attached to the affidavit. Mr. Dessalines’s affidavit and deposition testimony, relied upon by Plaintiff as evidence from a fact witness, established Plaintiff’s prima facia case that the charge of $1,950 for the lumbar MRI and a charge of $1,900 for the cervical MRI were Plaintiff’s usual and customary charges and were reasonable. Mr. Dessalines established this by reliance on the Plaintiff’s billing practices, the billing practices of a separate medical billing company for which he is a corporate officer, office procedures, collection practices, reimbursement trends, amounts others were charging and amounts paid to Plaintiff by various payors (of which included the Defendant in this case). Mr. Dessalines attests that the Plaintiff regularly and consistently received reimbursements in the amount of 80% of its charges for cervical and lumbar MRIs from No Fault insurers that did not apply or elect in its policy the permissive Medicare fee limitation. The Court finds that the affidavit and deposition satisfy the Plaintiff’s burden to set forth its prima facia case that the amount of $1,900 for the cervical MRI at issue and $1,950 for the lumbar MRI at issue are reasonable. Reliance Ins. Co. v. Pro-Tech Conditioning & Heating, 866 So. 2d 700, 702 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c].
As Plaintiff met its burden as to the reasonableness of the charges for the lumbar and cervical MRIs at issue, the burden shifted to the Defendant to establish that there remains a genuine issue of material fact and that Plaintiff is not entitled to judgment as a matter of law. The sole evidence relied upon by the Defendant was the affidavit of one of their employee adjusters, Dean Rogers. The Plaintiff argued that the Defendant failed to establish a disputed issue of material fact through Mr. Rogers’s affidavit as a result of the fact that the affidavit was conclusory, inconsistent, attempted to alter an earlier position taken by Defendant in response to Plaintiff’s discovery in this case, failed to address whether Plaintiff’s charges for the MRIs were reasonable or not (the affidavit merely indicated that the Defendant considered the amounts they allowed for the MRIs to be reasonable whereas the issue is whether the amount of the Plaintiff’s charges are reasonable, not whether the amounts allowed by the Defendant are reasonable), and failed to satisfy the holding of Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 38 Fla. L. Weekly S517a (Fla. 2013). This Court agrees.
Once a party moving for summary judgment provides competent evidence to support the 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. Landers v. Milton, 370 So. 2d 368 (Fla. 1979). Under Rule 1.510(e), a Court may consider evidence at a summary judgment hearing only if it would be admissible in evidence.
Pursuant to §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 schedule 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 failed to present competent, admissible evidence to rebut Plaintiff’s prima facia showing that their charges for the cervical and lumbar MRI were reasonable.
The Defendant has provided nothing more than a parroting of the general factors set forth in the statute for determining a reasonable charge. The Court notes that under the PIP statute, an insurer must pay the amount billed if the amount billed is “reasonable.” There is generally not a single amount that is “reasonable,” but rather a range. If the provider’s charge falls within that range, the insurer must pay it, even if there are lower amounts in the range of reasonable. Conveniently, however, Mr. Rogers offered an opinion that the amount equaling 200% of the Medicare Part B fee schedule is the only reasonable amount that should have been reimbursed. In reaching his ultimate conclusion that an amount equal to 200% of Medicare is the only reasonable charge, Mr. Rogers completely ignores consideration of any reimbursement schedules or amounts which are in excess of 200% of Medicare. In essence, Mr. Rogers’s affidavit excludes any data which could cause an increase in the outcome, and clearly cherry picks only information and reimbursement schedules that supports his opinion that 200% of Medicare is the only reasonable charge. Mr. Rogers did not provide fact testimony as to why the payment was reduced to the 200% of Medicare amount and the factors State Farm took into consideration AT THE TIME it reduced the Plaintiff’s charges — this is what a fact witness does. Instead, State Farm is attempting to cloak Mr. Rogers opinion testimony under the cover of fact testimony, which it clearly is not. The opinion offered (that 200% of Medicare is a reasonable amount for the services at issue) is equally inadmissible lay opinion testimony. Opinion testimony of 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 Fire Mut. Ins. Co. v Vosburgh, 480 So. 2d 140 (Fla. 4th DCA 1985). See also United Auto. Ins. Co. v. Miami Neurology Rehab. Specialists, 19 Fla. L. Weekly Supp. 799a (11th Cir. Ct. 2012) (appellate capacity)(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). Essentially, Mr. Rogers’s opinion is that 200% of Medicare is the amount State Farm found to be reasonable, so he agrees with that position. Thus, as a matter of law, Mr. Rogers’s opinions 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 an issue of fact and are insufficient to avoid summary judgment.
It is well settled, that to take advantage of the limited reimbursement schedule provided for in Fla. Stat. §627.736(5)(a)(2)(f), an insurer must specify that method to the exclusion of any others. Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 90 So. 3d 321 (Fla. 3rd 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 Services, Inc., 79 So. 3d 55 (Fla. 3rd 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]. Defendant is not permitted to use the “200% Medicare” methodology to limit reimbursement unless it can demonstrate that amount is the maximum reimbursable amount under some alternative means. Virtual Imaging Servs., 79 So. 3d at 57 (“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 chose not do to so have recourse to some alternative means for determining a reasonable amount.”).
Additionally, Defendant failed to comply with the holding of Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 38 Fla. L. Weekly S517a (Fla. 2013) in that the evidence revealed that the methodology utilized by Defendant to calculate the reimbursements at issue was solely based on 200% of Medicare. The 200% of Medicare methodology relied upon by Defendant in this case is identical to that found in the limited reimbursement schedule provided for in Fla. Stat. §627.736(5)(a)(2)(f). Defendant asserts that they determined reasonable charges in this case pursuant to §627.736(5)(a)(1) and not §627.736(5)(a)(2)(f), even though Defendant’s final result under (5)(a)(1) was identical to what the (5)(a)(2)(f) result would have been. Under §627.736(5)(a) Defendant may not rely exclusively on the 200% of Medicare methodology “to limit reimbursements without notifying its insured by electing those fee schedules in its policy.” Id. at 11. It is undisputed that the Defendant failed to elect the 200% of Medicare methodology or the limited reimbursement schedule provided for in Fla. Stat. §627.736(5)(a)(2)(f) in their policy of insurance. For the reasons stated above, Defendant has not come forward with any admissible evidence that a disputed issue of material fact exists as to the reasonableness of the Plaintiff’s charges for the cervical and lumbar MRI.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary judgment is GRANTED. Final Judgment be and the same is hereby entered in favor of the Plaintiff, HIGH DEFINITION MOBILE MRI, INC., as assignee of Jean Dieujuste, located at 8927 Hypoluxo Road, Suite A4, Lake Worth, FL 33467, and against the Defendant, State Farm Mutual Automobile Insurance Company, in the amount of $1,306.96 ($3,850.00 @ 80%= $3,080.00, less prior payment of $1,773.04 = $1,306.96), plus applicable prejudgment and post judgment interest, for which let execution issue forthwith.
The Court hereby expressly reserves jurisdiction of those issues related to prevailing party attorney’s fees and costs in favor of Plaintiff.
