22 Fla. L. Weekly Supp. 1100a
Online Reference: FLWSUPP 2209DIAZInsurance — 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 lacks evidence that opinion is based on sufficient facts or data or is product of reliable principles and methods or scientific knowledge — Fact that provider routinely accepts less than charged amount for services provided under HMO and PPO contracts does not create factual issue as to reasonableness of charge
MILLENIUM RADIOLOGY, LLC, d/b/a MILLENIUM OPEN MRI, a/a/o Roberto Diaz, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 12-006125, Division 54. March 27, 2015. Stephen J. Zaccor, Judge. Counsel: Gary Marks, Marks and Fleischer, Ft. Lauderdale, for Plaintiff. Rashad El-Amin, Office of the General Counsel, Miami, for Defendant
.ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
This cause came before the court on March 25th, 2015 on Plaintiff’s Motion for Summary Judgment relative to whether the charge of $4,300 was reasonable for the cervical and right knee MRIs performed in 2011. After reviewing the pleadings, the affidavits of Ms. Roberta Kahana, the deposition of Ms. Kimberly Denard-Kohn and the affidavit of Dr. Edward A. 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 reasonableness of the charge.
ANALYSIS AND FINDINGS OF FACT
Millenium Radiology (hereinafter the Plaintiff), sued United Automobile Insurance Company (hereinafter the Defendant) for breach of a contract of personal injury protection benefits under the Florida’s No Fault law. It is undisputed the Defendant’s policy requires the Defendant to pay 80% of all reasonable expenses. In this case, the Plaintiff billed $4,300 for the two MRIs in question and maintains the charge is within the range of what is reasonable. It is 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.1 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 court considered all arguments made by counsel in ruling on this matter and the arguments made in the Plaintiff’s motion.
The Plaintiff moves for Summary Judgment based on an affidavit of Roberta Kahana, an owner and Corporate Representative, who maintains the Plaintiff’s charge of $4,300 for two MRI’s is reasonable. Ms. Kahana has fourteen years of experience as an owner/operator of three MRI facilities and therefore has personal knowledge of, and is familiar with, the MRI industry and what a reasonable charge is for an MRI. She personally sets the charges for the Plaintiff, is aware of what other MRI centers charge, and what the Plaintiff has been paid by no-fault carriers who do not apply the 200% of Medicare methodology. In 2005 Ms. Kahana set the charge of $2,150 for each of the MRI’s performed in this case. In doing so, she consulted other providers in the area. Ms. Kahana has also consulted a trade publication2 to confirm the Plaintiff’s charge is within the range of what is reasonable.
Summary judgment is appropriate only when “there is no genuine issue as to any material fact. Mack v. Broward Cnty., 900 So. 2d 718, 719 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1078a]. Once the moving party carries its burden that there is no genuine issue of material fact, the burden shifts to the nonmoving party. Id.
The Plaintiff has met its burden in this case. Ms. Kahana’s affidavit establishes a prima facie case that $2,150 is within the reasonable range of a charge for the MRI’s performed in this case.
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).
Coastal Radiology, LLC (a/a/o Jenesis Ramirez) v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 167a (Fla. Broward Cty. Ct. 2014). The Plaintiff having met its burden, it now shifts to the Defendant to show the existence of an issue as to a material fact.
In opposition to the Plaintiff’s motion the Defendant relies primarily on an affidavit from Dr. Edward A. Dauer and a deposition of Kimberly Dennard Kohn. In his affidavit, Dr. Dauer opines that the Plaintiff’s charge is not reasonable and that 100% of the Medicare Fee Schedule would be reasonable. As Dr. Dauer is providing his expert his opinion on the issue of reasonableness it must withstand the scrutiny Section 90.702, Florida Statutes (2013), which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). This Court finds Dr. Dauer, a board certified Radiologist by trade and owner of diagnostic centers, is qualified by knowledge, experience, and education in the field of Radiology. Whether he can give expert testimony regarding the reasonableness of the charges turns on whether sub-sections (1), (2), and (3) are satisfied. More specifically, “the subject of an expert’s testimony must be ‘scientific knowledge.’ ” Perez v. Bell South Telecommunications, Inc., 138 So.3d 492, 498 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b], quoting Daubert at 590. “In order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method.” Id.
This Court finds the Defendant has not established Dr. Dauer’s testimony satisfies Section 90.702 Florida Statutes (2014) or Daubert and its progeny. The first sentence of Dr. Dauer’s affidavit reads:
1. My name is Edward Dauer, M.D. I am over the age of 18 and sui juris. This affidavit is based on my personal knowledge, skill, experience, training and education. (emphasis added)
Absent from that statement, nor provided in the rest of the affidavit, is evidence of sufficient facts or data, reliable principles and methods, or scientific knowledge.” Dr. Dauer’s affidavit provides for anecdotal evidence based on his experience, to wit: what he charges for identical services at his facilities, what hospitals charge, and what his peers in the community told him they charge. Unlike Ms. Kahana’s affidavit, there is no reference to any trade publications. This is not the sort of testimony which qualifies under Section 90.702 Florida Statutes (2013). See Giaimo v. Florida Autosport, Inc., 154 So.3d 385 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D2484a]. To the contrary, this is more akin to the “pure opinion” testimony which has been rejected by the legislature. Perez at 497. Therefore, Dr. Dauer’s testimony cannot be considered and does not create the existence of a material fact in issue as to the reasonableness of the charges.
The Defendant maintains there is a material fact in issue even without Dr. Dauer’s testimony because the Plaintiff routinely accepts less than the charged amount at issue under H.M.O and P.P.O. contracts. Negotiated contract rates, ie: HMOs and PPOs are not relevant unless the insurer and provider in suit have entered into such a contract. See Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328 (Fla. 2007) [32 Fla. L. Weekly S453a].
Accordingly, the Plaintiff’s Motion for Summary Judgment is hereby granted as to for the reasons set forth above, in the documents filed by the Plaintiff, and the additional reasons argued at the hearing.
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1The Defendant contends it overpaid for one of the MRI’s and that overpayment is based upon the fact they only intended on paying 200% of the Medicare Part B Fee Schedule.
2Ingenix National Fee Analyzer 2010 and 2011.
