22 Fla. L. Weekly Supp. 138a

Online Reference: FLWSUPP 2201HORRInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary disposition — Opposing affidavit filed by insurer does not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charge where affidavit is conclusory and lacks foundation, and affiant is not qualified to render opinion on reasonableness of charge — Fact that Medicare, workers’ compensation, and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge

PALMS MRI DIAGNOSTIC IMAGING CENTERS, INC., as assignee of Steven Horrigan, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-02472 CONO 73. July 28, 2014. Steven P. DeLuca, Judge. Counsel: Cris Evan Boyer, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Michael Rosenberg, for Defendant

ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY DISPOSITION IN PART

This cause came before the court, on July 28, 2014, after due notice to the parties, on Plaintiff’s Motion for Summary Disposition relative to whether the charge of $1,850 was reasonable for the cervical MRI without contrast (CPT Code 72141) in 2011. The court reserved summary disposition Rule 7.135 on 5/7/12. The amount in controversy is $619.70 which was calculated by taking the billed amount $1850, multiplying it by .8 and subtracting the payment of $860.30. After reviewing the pleadings, the affidavits of Mrs. Bekys Torres and Mr. Spell, the evidence, the deposition transcripts, the rest of the record, and after hearing argument of counsel for the parties, the court finds no triable issue per Rule 7.135 and hereby grants Summary Disposition in favor of the Plaintiff as to price only and against the Defendant on this issue for this CPT code. It is denied as to medical necessity and related as the Plaintiff did not file any affidavits to support its allegation.

Analysis and findings of fact

The Plaintiff, Palms MRI, sued State Farm Mutual Automobile Insurance Company (herein after State Farm) for breach of a contract of personal injury protection benefits under the Florida No Fault law in Small Claims Court. It is undisputed the Defendant’s policy requires the Defendant to pay 80% of all reasonable expenses. See Defendant’s explanation of review which is in the record as it is attached to the affidavit of Mr. Spell as exhibit 3. The policy does not have a set number as to what it will pay for medical services. Thus, reasonable is a range. In this case, the Plaintiff billed $1850 for the MRI in question which took place in 2011 and argues its charge is within the range of what is reasonable.

State Farm Mutual received the bill and paid based what it considers reasonable which happens to be exactly based 200% of the Participating Level of Medicare Part B, and not 80% of the billed amount. See Mr. Spell’s affidavit at page 11 and the explanation of review. There is no record evidence the Defendant specifically considered any factors when it issued the payment. It is undisputed the Defendant’s policy does not state it will pay claims based on 200% of medicare. Nor is it an affirmative defense that the Defendant will pay medical bills based on the fee limitations found in §627.736(5)(a)(2).

The amount tendered by the Defendant was not accepted as payment in full by the Plaintiff who, after serving a demand letter, sued State Farm Mutual Auto for breach of contract for the balance. The Defendant filed an answer without no affirmative defenses.

The matter is ripe for Summary Disposition as there are no pending 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.

The Plaintiff moved for Summary Disposition based on a detailed and competent affidavit of Mrs. Bekys Torres, an owner of the Plaintiff, who, based on substantial showing, avers that the amount of Plaintiff’s charge of $1850 is reasonable. Mrs. Bekys Torres has personal experience and knowledge of the MRI industry and what is a reasonable charge for an MRI. She is aware of what other MRI centers charge, what the Plaintiff has been paid, and she has relied on four (4) different authoritative publications to confirm the Plaintiff’s charge is within the range of what is reasonable. See §90.803(17). The court finds the affidavit of Mrs. Bekys Torres meets the Plaintiff’s prima facie burden to establish the Plaintiff’s charge is within the range of reasonable. See United Auto v. Hallandale Open a/a/o Antonette Williams, 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. App December 11, 2013) and Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So.2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c].

Pursuant to Rule 7.135 the Plaintiff would be entitled to summary disposition if there is no triable issue. See United Auto v. Hallandale Open a/a/o Antonette Williams, FLWSUPP 2105WILL (Fla. 17th Cir. Court 2013) [21 Fla. L. Weekly Supp. 399d]. The Defendant may not defeat a motion for Summary Disposition by raising purely paper issues where the pleadings and evidentiary matters before the trial court show that defenses are without substance in fact or law. Hialeah Medical Assoc a/a/o Lexcano v. United Auto, 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. App. Court 2014) . It is not sufficient for the opposing party to merely assert that an issue does exist.

The Plaintiff seeks summary disposition that the price was reasonable. 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 that Palms MRI met its burden of establishing the reasonableness of the MRI charge based on the affidavit of Mrs. Torres which explains why $1,850 is a reasonable charge for an MRI conducted in 2011 in Broward Count. Since the Plaintiff met its burden, the burden now shifts to the Defendant to establish a triable issue.

The court finds State Farm Mutual Auto did not meet its burden to establish a triable issue as to the reasonableness of the charge for the Plaintiff’s MRI. The affidavit of Mr. Spell, served on July 25, 2014, stating the billed amount is unreasonable is self-serving, conclusory, devoid of methodology, is based on inadmissible hearsay and lacks foundation or the basis for his opinion that the amount charged was unreasonable. Mr. Spell’s opinions are not based on relevant or sufficient data. Spell’s opinion is being rejected because his methodology is unsupported, he is not relying on relevant factors, and he is considered unqualified to give reasonableness of the charge opinions. Further, there were no non-hearsay relevant documents attached to his affidavit. A summary from MarketScan Research data bases is not valid evidence (exhibit 1 to the affidavit). A conclusory affidavit of a party is insufficient to create a disputed issue of fact. Master Tech v. Matec, 49 So.3d 789, 791 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2381a]. A party does not create a disputed issue of fact by merely stating factual conclusions. Id. There is a long list of county court judges, that refuse to consider Mr. Spell’s affidavit sufficient to defeat either Summary Judgment or summary disposition on the issue of price including the appellate decision of State Farm v. Imaging Center of Pensacola, Circuit Case number 2012-AP-000052 (Fla. 1st Circuit Court 2014) [21 Fla. L. Weekly Supp. 979a], Broward Rehab Center a/a/o Meloche v. State Farm, Case number 12-007151 COCE 56 (Fla. Broward County Court 2014, Judge Pratt); Pro Imaging v. State Farm, 21 Fla. L. Weekly Supp. 590a (Fla. Broward County Court 2014, Judge Lee); Hallandale Open a/a/o Ian Duncan v. State Farm, case number 11-014681 CONO 73 (Fla. Broward County Court 2014, Judge DeLuca) [21 Fla. L. Weekly Supp. 1080a]; Hallandale Open a/a/o Ulysses Moore v. State Farm, Case number 12-5953 CONO 71 (Fla. Broward County Court 2014, Judge Schiff) [21 Fla. L. Weekly Supp. 812a]; Hallandale Open a/a/o Michael Cohen v. State Farm, Case number 13-018070 COCE 51 (Fla. Broward County Court 2014, Judge Dishowitz); Miami Dade County MRI a/a/o Bouzo v. State Farm, Case number 12-08665 SP 23 (02) (Fla. Dade County Court Judge Caryn Schwartz). . This court agrees with the other judges.

Mr. Spell’s affidavit fails to include a range of what other MRI providers charge for the same service during the time in question for South Florida, what MRI providers accept as payment in full, what PIP insurers pay when the insurer pays based on a reasonable amount, what out of network health insurers pay, a factual basis to establish he is qualified to give any opinions on what is a reasonable charge for an MRI in South Florida in 2011, an analysis of how he arrived at his opinions, and he did not attach any of the documents he relied upon other than a summary of hearsay research from Marketscan.

There is no record evidence that Mr. Spell is qualified to give any opinions in this case on what is a reasonable charge for an MRI. Mr. Spell’s knowledge of what certain payors pay for MRIs does not make him qualified to state a billed amount is unreasonable. This court agrees with the numerous judges around the State that Mr. Spell is not qualified to opine as an expert on what is a reasonable charge according to Fla. Stat. §90.702. As such, he will be considered as a lay witness by this court. Opinion testimony of a 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 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). As a lay witness, the only information Mr. Spell provides is his knowledge of reimbursement levels by the payors mentioned in his affidavit. He cannot provide an ultimate opinion as to whether the Plaintiff’s charge is reasonable. His opinion as to what is a reasonable payment is not relevant as the issue is whether the charged amount is within the range of what reasonable.

The Defendant is not permitted to invoke the payment limitations of §627.736(5)(a)(2) without complying with the provisions of Kingsway v. Ocean Health, 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] as §627.736(5)(a)(2) is a payment limitation.

The fact that the PIP statute has a limitation of 200% of medicare under F.S. §627.736(5)(a)(2) is irrelevant as the Defendant has not alleged it paid pursuant to §627.736(5)(a)(2) and 200% of medicare is not a factor to consider within F.S. §627.736(5)(a)(1) which has specific factors. Likewise, whether the Defendant paid a reasonable amount is not an issue for consideration for the jury as the Plaintiff has the burden to prove its charge is reasonable. The Defendant does not have to prove it paid a reasonable amount. The Plaintiff must prove its charge is within the range of what is reasonable. Reasonable is not a set number.

Had the legislature wanted courts to consider 200% of medicare in an analysis of what is a reasonable charge for a medical provider it would have expressly provided for this provision as the legislature specifically addressed 200% of medicare in §627.736(5)(a)(2). See SOCC v. State Farm, 95 So.3d (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a]. Had the legislature wanted every medical bill be determined by a jury where the provider charged more than Medicare, workers compensation or an in-network health insurers the legislature would have expressly done so. The purpose of the no fault scheme is to provide swift and virtually automatic payment so that the injured may get on with his life without undue financial interruption. Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla. 2000 [25 Fla. L. Weekly S1103a]; Nichols v. State Farm, 851 So.2d 742 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1404a]; United v. Stat Technologies, 787 So.2d 920 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D1237b], Government Employees v. Gonzolez, 512 So.2d 269 (Fla. 3d DCA 1987); Allstate v. Holy Cross Hospital, 32 Fla. L. Weekly S453a (Fla. 2007); USAA Casualty Insurance Co. V. Shelton, 932 So.2d 605 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1798a].

Thus, based on Mr. Spell’s affidavit there is simply no competent admissible evidence to create a triable issue that the charged amount was unreasonable. The fact that Medicare, Workers Compensation, New Jersey, etc., allows less than the amount billed by the Plaintiff in this case, by itself, is not sufficient to create a triable issue that the Plaintiff’s charge was unreasonable. See Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D2650b]. The Defendant’s affidavit fails to set forth a valid basis to explain why the Plaintiff’s charge is unreasonable simply because Medicare, workers compensation, NJ, etc. pays less. In fact, the Defendant cannot point to one Broward County Judge that agrees with this argument.

State Farm Mutual has not rebutted this evidence in the record or offered any proof that the charge is unreasonable, other than the self serving conclusory affidavit of Mr. Spell. Finding the Plaintiff’s charge is unreasonable based on what Medicare, Workers Compensation, etc. allow 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 workers compensation, 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.

Finally, State Farm’s reliance on Medicare is not persuasive as Medicare is social welfare. See Atkins v. Allstate, 382 So. 2d 1276 (Fla. 3d 1980) where the court held:

But the basic fact is that Medicare is a social welfare program and not an insurance or reimbursement plan within the everyday and ordinary meaning of these terms. Medicare was added to the existing Social Security laws in 1965 and as yet there have been few, if any, judicial decisions defining its scope.

In the appellate decision of Hialeah Medical Assoc a/a/o Lexcano v. United Auto, 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. App. Court 2014) the appellate court held “Medicare fee schedules are not relevant in PIP cases, and should not be used.” In this case, State Farm originally paid the Plaintiff’s bill based on what it considered “reasonable” but there is no evidence in this record to establish how the Defendant determined the amount to pay and the Defendant had no evidence the Plaintiff’s charge was outside the range of what is reasonable. The affidavit of Mr. Spell, filed one business day before the hearing, did not create a triable issue because his opinions are not based on relevant or sufficient data.

Accordingly, Palms MRI Motion for Summary Disposition is hereby granted as to price only for the reasons set forth above and the reasons argued at the hearing.