22 Fla. L. Weekly Supp. 856b
Online Reference: FLWSUPP 2207TRODInsurance — Personal injury protection — Coverage — Medical expenses — Related and necessary services — Insurer may not challenge relatedness and necessity of services for which it has already paid benefits
MR SERVICES I, INC., D/B/A C&R IMAGING OF HOLLYWOOD, (Tamara G. Rodriguez), Plaintiff, vs. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-13808 COCE (51). January 14, 2015. Martin R. Dishowitz, Judge. Counsel: Steven Lander, Lander Dalal & Associates, P.L., Fort Lauderdale, for Plaintiff. Kathryn Winkler, Kirwan & Spellacy, P.A., Fort Lauderdale, for Defendant.
REVERSED. FLWSUPP 2407STAR (Star Casualty Ins. Co. v. MR Services 1, Inc., 15-015555 AP, 9-22-2016]
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came to be considered on Plaintiff’s Motion for Final Summary Judgment. The Court, having reviewed the Motion, relevant legal authorities; having heard arguments of counsel; and having been sufficiently advised in the premises, the Court finds as follows:
On September 22, 2009 an insured of the Defendant, Tamara G. Rodriguez, was involved in a motor vehicle accident. In connection with the aforementioned loss the claimant underwent MRI testing with the Plaintiff Company. Specifically, on November 4, 2009 the Plaintiff performed a lumbar and a cervical MRI on the claimant, charging $1,750.00 per scan, for a total of $3,500.00. The Plaintiff timely billed the Defendant for the services. The Defendant failed to issue payment within 30 days of receipt of Plaintiff’s bill and on February 19, 2010 the Plaintiff served its pre-suit demand letter in accordance with Florida Statute 672.736(10). On March 1, 2010, the Defendant responded to Plaintiff’s pre-suit demand, reducing the charges to 200% of medicare, and issuing payment to the Plaintiff in the amount of $1,807.46 for benefits. [The Defendant added statutory interest] The Plaintiff challenged the Defendant’s ability to reduce the Plaintiff’s bills to 200% of medicare based on the language of the Defendant’s insurance policy, and on July 11, 2012 filed suit against the Defendant for underpayment of its bill.
In response to Plaintiff’s Complaint, and in response to Plaintiff’s Request for Admissions the Defendant stipulated to loss and coverage, the only remaining issues being: medical necessity and relatedness of the two (2) MRI’s; whether the Defendant properly incorporated the permissive fee schedule under Florida Statute 627.736(5)(a)(2); and if it failed to properly incorporate the permissive fee schedule, whether Plaintiff’s charges were reasonable.
The Plaintiff filed its Motion for Final Summary Judgment as to the aforementioned issues, attaching the affidavit of the Plaintiff/Company, Dr. Mark Gans, who opined as to the reasonableness of Plaintiff’s charges. The Defendant, in opposition filed the affidavit of Dr. Brian Matthews, who opined as to the medical necessity and relatedness of Plaintiff’s charges, along with the deposition of Dr. Gans. By way of background the Defendant had obtained an IME report of Dr. Mathews, performed on December 22, 2009. That IME report did not address, or mention, the Plaintiff’s MRIs.
In response to Plaintiff’s bill, received on December 28, 2009, the Defendant made no mention contesting the medical necessity or relatedness of the two (2) MRIs. Further, on March 1, 2010, when the Defendant paid the Plaintiff’s charges in response to the pre-suit demand letter, the Defendant, again, made no mention contesting medical necessity or relatedness. Instead, in response to Plaintiff’s Complaint, the Defendant, as its Second Affirmative Defense, alleged that the medical services were not “reasonable, necessary or related.” At no time prior to this pleading did the Defendant dispute the necessity/relatedness of the MRIs which they paid.
Defendant, in support of its contention that it can at any time dispute relatedness and necessity of the services at issue, asserts Fla. Statute 627.736(4)(b), which reads:
“This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of subsection (5). Such an assertion by the insurer can be made at anytime, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.”
It is this Court’s opinion that when the legislature created 627.736(4)(b), that they did not intend for insurers to be able to retroactively deny previously paid bills, merely to defend a lawsuit on other grounds. In the case at bar the Plaintiff filed suit for underpayment of its bill. Waiting until suit is filed to question, for the first time, whether a bill it paid was necessary/related, is inconsistent with the legislative intent of Florida’s PIP statute. Most certainly, the carrier has an obligation to timely review its payment, and promptly notify the insured if it has paid a bill that it now believes was not medically necessary/related, and therefore not a covered loss.
627.736(4)(b) must be read in the context of the insurance statutes. Notably, Fla. Statute 626.9541.
Fla. Statute 626.9541(i)(3), which requires an insurer to promptly notify the insured of a its denial or reduction, reads:
(e) “failing to affirm or deny full or partial coverage of claims, and, as to partial coverage, the dollar amount or extent of coverage, or failing to provide a written statement that the claim is being investigated, upon the written request of the insured within 30 days after the proof-of-loss statements have been completed.” Fla. Stat. 626.9541(i)(3)(e).
(f) “failing to promptly provide a reasonable explanation in writing to the insured of the basis in the insurance policy, in relation to the facts or applicable law, for the denial of a claim or for the offer of a compromise settlement” Fla. Stat. 626.9541(i)(3)(f).
At the time of its Answer the Defendant did not have any report which asserted the Plaintiff’s MRIs were not medically necessary or related. In fact it was not until December 3, 2014, five (5) years later after the MRIs were performed, that Dr. Matthews first gave a written opinion that said services were not RRN. The Dr’s affidavit, consistent with that Addendum, is dated the next day, December 4, 2014. The Court seriously doubts that, but for the instant litigation, the Defendant would have inquired into the medical necessity/relatedness of the MRIs it paid. To wait until suit is filed, and for no other reason than because suit is filed, violates the carrier’s obligation of good faith and fair dealing; to put more simply, its action amounts to bad faith.
It is clear that the legislature did not intend for Fla. Stat. 627.736(4)(b), to be used a shield to extend litigation, and provide a do-over for the insurer when, but for the lawsuit, it would not have done such a review.
This issue was squarely addressed in Glenn V. Quitana, D.C., P.A. (A/A/O Mellissa N. Evans) v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 882a. “For State Farm to suggest, retroactively, that some of the bills that had already been paid(and in effect, affirmed coverage for) are now not covered because they were unnecessary, would, violate this provision of the bad faith statutes. . .” Additionally, “The Court does not feel that when the legislature created 627.736(4)(b), that they intended for insurers to retroactively deny previously paid bills.”
This Court adopts the well reasoned opinion set forth by the Quintana Court. The MRIs paid by Star Casualty Insurance Company in the case at bar are deemed medically necessary and related. As to the issue of reasonableness the Plaintiff provided the affidavit of Dr. Mark Gans, D.C., the owner of the Plaintiff facility. Dr. Gans testified, based on his experience, reviews et. al., that Plaintiff’s charges were reasonable. The Court finds Dr. Gans affidavit sufficient. In opposition the Defendant filed the deposition of Dr. Gans to attempt to create a material issue of fact. The Defendant, however, failed to provide any admissible evidence alleging that Plaintiff’s charges were unreasonable, as required under rule 1.510, Florida Rules of Civil Procedure.
Accordingly, it is hereby:
ORDERED AND ADJUDGED: Plaintiffs Motion for Final Summary Judgment is GRANTED. The Plaintiff shall submit a proposed Final Judgment to the Court.
