22 Fla. L. Weekly Supp. 136b

Online Reference: FLWSUPP 2201RUIZInsurance — Personal injury protection — Summary disposition — Reasonableness of charges — Medical provider met its burden of proving charges for MRI and CAT scans were 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 disposition

MILLENNIUM RADIOLOGY, LLC, as assignee of Carmen Ruiz, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-001119 CONO 73. July 14, 2014. Steven P. DeLuca, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Rashad El-Amin, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY DISPOSITION

THIS CAUSE came before the Court on July 11, 2014, for hearing of the Plaintiff’s Motion for Final Summary Disposition per Rule 7.135, 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:

The Defendant agreed medical necessity and related is not an issue in the case. Thus, the only remaining issue is whether $2,150.00 for a lumbar MRI, $1,200 for a cat scan of the brain and $1,500 for a cat scan of the neck is within the range of what is “reasonable” as to price. See Plaintiff’s amended complaint dated 12/14/13 paragraph 13 and 14. The Defendant paid $1,886.98 for all the three services which was based on 80% of what the Defendant found to be reasonable. The amount in controversy is $1,993.02 which is calculated by taking $4,850 for all three services, multiplying by .8 and subtracting the payment.

In support of its Motion for Final Summary Disposition Plaintiff submitted and timely filed the affidavit of Roberta Kahana, an owner and corporate representative of the Plaintiff, the deposition transcript of the Defendant’s adjuster John O’Hara and the Defendant’s responses request for admissions.

Mrs. Kahana attests the Plaintiff is seeking $2,150.00 for the subject lumbar MRI, $1200 for a cat scan of the brain and $1500 for a cat scan of the neck. She alleges Plaintiff’s charges were reasonable, and usual and customary based on her personal knowledge of the Plaintiff’s billing practices, systems, charges and procedures that she created and oversees. She is aware of the amounts others were charging for similar services in the community. She has worked in the health industry for a number of many years. She owns and runs two MRI centers. She is aware of what the hospitals charge and non hospitals charge for MRIs and cat scans. The Plaintiff has been paid without reduction from many no fault insurers and she relied on publications that reflect the Plaintiff’s charge is within the range of what is reasonable according to publications. She states these publications are authoritative and advise medical providers as to what is a reasonable charge. The Plaintiff also filed the deposition transcript of an adjuster for the Defendant, John O’Hara who agreed that the non hospital MRI charges in the community are from $1500 to $2500 (pages 14-15) which is consistent with the Plaintiff’s affidavit. Mr. O’Hara, who works for the Defendant, also states the Defendant allowed MRI bills that exceed double medicare (page 15) as well as MRI bills that are for $2150 which is the same as what the Plaintiff billed in this case (page 23). Thus, it is undisputed the Plaintiff’s charge is within the range for what other diagnostic companies charge for the MRIs.

The Plaintiff seeks summary disposition that the price was reasonable for the three services. 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 the Plaintiff’s affidavit and the deposition of Mr. O’Hara satisfy Plaintiff’s burden to prove its charges are reasonable. United Automobile Insurance Company v. Hallandale Open MRI, LLC (Antonette Williams), 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 Denorah Lang, an employee of the Defendant, served on 6/19/14. Plaintiff argues the Defendant failed to establish a triable issue through Ms. Lang’s affidavit. This Court agrees with the Plaintiff.

Once a party moving for Summary Disposition presents competent evidence to support its motion for Summary Disposition, that party is entitled to Summary Disposition unless the non-moving party can come forward with competent evidence sufficient to reveal a triable issue. United Automobile Insurance Company v. Hallandale Open MRI, LLC (Antonette Williams) , Case No. 12-19662CACE (17th Cir. App December 11, 2013) [21 Fla. L. Weekly Supp. 399d]

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 their charges were, in fact, reasonable as reasonable is a range and not a set number.

Ms. Lang was not tendered as an expert by the Defendant at the hearing and, if she was tendered as an expert, the court finds she is not competent to be an expert witness according to Fla. Stat. §90.702(1)(2013) as her opinions are not based upon sufficient facts or data.

In her affidavit, Ms. Lang, a fact witness, states her experience as an insurance adjuster for the Defendant. She has absolutely no experience in the medical field or billing in the medical field. She has never worked for or billed for a diagnostic company. She does not state what is a reasonable charge. Further, she incorrectly states in paragraph 7 of her affidavit, the Plaintiff was seeking $2170 for each cat scan. She attaches none of the documents she reviewed or referenced that supports any of her allegations. She claims she relies on various factors but provides no support or facts to support her allegation and she fails to explain why these other sources would be relevant on their own. For example, she claims she relied on Medicare, HMO and PPO reimbursements but does not state what those are for the CPT codes at issue. She claims she relied upon her knowledge and experience with HMO and PPO agreements from her own health insurance but does not provide any information as to what that is or their applicability to the services at issue. She claims she relies on EOBS from other PIP insurers but does not state which ones or attach any. The remainder of her allegations suffer from the same hearsay and conclusory defects. This affidavit is woefully insufficient and fails to create a triable issue. Reasonableness is a range and is not just one number. Defendant has provided no evidence that Plaintiff’s charge is outside of the range of what is reasonable.

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 opinions offered by Ms. Lang are not rationally based on her 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 a triable issue of fact and are insufficient to avoid Summary Disposition.

The fact that Medicare, Workers Compensation, health insurance, etc. pay less than the billed amount does not mean the Plaintiff’s charge is unreasonable without any additional evidence. This would require the improper stacking of inferences as Medicare 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 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.

Health insurers such as HMO and PPOs pay less but they provide the doctors with a flow of business, guaranteed payment and very low risk. Therefore, the fact an HMO or PPO pays less, without more, does not mean the Plaintiff’s charge is unreasonable. See Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D2650b] and Plantation Open MRI v. State Farm, 21 Fla. L. Weekly Supp. 589a (Fla. Broward County Court 2014, Judge Lee) where the court opined that testimony of medicare fee schedules without more is insufficient to raise a disputed issue of fact as to reasonableness of charge).

For the reasons stated above, Defendant has not come forward with any admissible evidence demonstrating the amounts at issue are unreasonable amount which would create a triable issue.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Disposition is GRANTED. The Plaintiff is directed to submit to the Court a proposed final judgment.