22 Fla. L. Weekly Supp. 481a
Online Reference: FLWSUPP 2204MANSInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary disposition — Opposing affidavits filed by insurer do not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charges where PIP policy does not elect permissive statutory fee schedule, and affidavits establish that insurer based payments solely on statutory fee schedule
PRECISION DIAGNOSTIC, INC. DBA PRECISION MRI (assignee of Mansour, Kimberly), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-03717CONO 73. October 14, 2014. Steven P. Deluca, Judge. Counsel: Michael F. Ryan, Florida PIP Law Firm, Boca Raton, for Plaintiff. Elinis Marie German, Conroy Simberg Ganon, Hollywood, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR PARTIALSUMMARY JUDGMENT REGARDING THEREASONABLENESS OF CHARGES
THIS CAUSE having come before this court on Plaintiff’s Motion for Partial Summary Judgment Regarding the Reasonableness of Charges, and the court having heard argument of counsel and being otherwise advised in the premises, the Court finds as follows:
This is an action for PIP benefits. The claimant was injured in a motor vehicle accident on 8/19/2011. Thereafter, on 9/20/2011, the claimant received medical services (MRI’s) from the Plaintiff. The claimant assigned her rights and benefits under a policy of insurance with the Defendant, to the Plaintiff. Plaintiff submitted bills on behalf of the patient for two MRI’s. The total billed for the services was $3,200 ($1,600 per scan). The Defendant’s policy of insurance required that it pay 80% of reasonable medical expenses. It is undisputed that the Defendant did not elect the permissive payment methodology described in Florida Statute 627.736(5)(a)(2) and Geico Gen. Ins. Co. v. Virtual Imaging Services 141 So.3d 147 (FL. 2013) [38 Fla. L. Weekly S517a]. Upon receipt of the Plaintiff’s bill the Defendant approved a lesser amount. It is undisputed that the Defendant approved an amount equal to 200% of the Medicare Part B Fee Schedule, the same amount that would have been due had the Defendant elected to pay pursuant to Florida Statute 627.736(5)(a)(2).
Plaintiff has sued for the difference between 80% of the billed amount and the amount paid by the Defendant. At the summary disposition hearing, the Plaintiff presented the affidavit of Brian Chan-A-Sue, the vice-president of the Plaintiff. In his affidavit, he explained the factors considered when setting his prices, his experience in the field, and why his charge of $1,600.00 per MRI is reasonable in price for the time and geographic location. The Court finds based upon the evidence presented and by the current case law, that the Plaintiff satisfied its burden in establishing that the charge is reasonable.
While the Defendant filed the affidavit of Dr. Michael Propper and its adjuster Melisa Mendez, the Court is not convinced that there is a triable issue regarding the reasonableness of the charge. Each of the witnesses state in affidavit that the payments for the services were based off of the Medicare Part B fee schedule. During the deposition of Ms. Mendez, which was filed with the Court and relied upon in the summary disposition, it was confirmed that the only consideration made when the bills were paid was the fee schedule contained in F.S. 627.736(5)(a)(2).
This Court agrees with the Escambia Circuit Court when it ruled in a consolidated appeal involving State Farm Mutual Automobile Insurance Company v. Imaging Center of Pensacola a/a/o Anthony Perkins, Mary Perkins, Paula Padilla, and Barbara Green 21 Fla. L. Weekly Supp. 979a (Cir. Court Judicial Circuit 2014). The Court in that case held that;
[M]edicare fee schedules under State Farm’s policy could be used as a part of State Farm’s methods and formulas used to determine what reasonable amount should be paid if Section 627.736(5)(a)1 applies to the policy. However, these schedules cannot be the sole basis for the “reasonable amount” determination. In this case, State Farm used the schedules as its sole basis to argue that the amounts Imaging sought for its medical services were not reasonable. The manner in which State Farm used the fee schedules in determining the amounts it believed were reasonable for the medical services provided runs contrary to the option State Farm elected when it entered into its insurance contract with its insured. What State Farm attempted to do in the instant case was to rely upon a method of payment it previously rejected in its insurance contract. To permit an insurer who opted not to pay the medical expenses of its insured pursuant to the medicare fee schedules to use those same fee schedules as the sole basis for the determination of reasonable expenses would circumvent the legislative intent of the statute as defined by the Florida Supreme Court in Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc. 2013 WL 3332385, (July 3, 2013) [38 Fla. L. Weekly S517a]. Therefore, the Court affirms the summary dispositions entered by the trial court.
To allow the insurer to solely use the fee schedules when calculating a “reasonable” amount and disregarding all other factors would create distinction without a difference and render the Supreme Court’s decision is Geico v. Virtual Imaging moot.
Therefore, it is hereby
ORDERED and ADJUDGED that:
Plaintiff’s Motion is GRANTED.
