22 Fla. L. Weekly Supp. 858a
Online Reference: FLWSUPP 2207SANAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavits filed by insurer do not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where one affiant was not disclosed as required by court order, and insurer stipulated that second affiant would only testify as to relatedness and necessity of charges — Even if court considered affidavit of second affiant, court would find it wholly unreliable where affiant signed original affidavit that makes no sense in context of case before filing amended affidavit that is substantively different from original — Moreover, opinions in affidavit lack foundation
PRIORITY MEDICAL CENTERS LLC (a/a/o Theresa Sanatass) vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-00508 COCE (53). January 26, 2015. Honorable Robert W. Lee, Judge. Counsel: Emilio Stillo and Susan Guller, for Plaintiff. Max Lopez and Frantz Nelson, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court January 15, 2015, on Plaintiff’s Motion for Final Summary Judgment, and the Court’s having reviewed the entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background. This is a suit over unpaid PIP benefits for one date of service August 8, 2012. On August 1, 2014, the Court entered an Order setting pretrial deadlines and referring the case to arbitration. The Court’s pretrial Order required disclosure of expert witnesses within 30 days of the date of the Order as well as the filing of a Joint Pretrial Stipulation within 50 days of the Order. Further, discovery was to be completed by September 25, 2014.
On September 2, 2014, the Defendant disclosed two experts Dr. Bradley Simon and Dr. Michael Propper. The description of what each witness would be testifying to was identical. In response, on September 3, 2014 the Plaintiff filed a Motion to Limit Experts so that there would be no cumulative testimony. On September 22, 2014 the parties entered a Joint Pretrial Stipulation identifying witnesses and their areas of testimony. The Joint Stipulation was signed by attorneys for both the Plaintiff and the Defendant. In order to moot Plaintiff’s motion to limit testimony, the Defendant stipulated that Dr. Simon would be testifying as to whether the services were related and medical necessity and Dr. Propper would be testifying as to reasonableness. At the pretrial conference the Defendant stipulated as to the relatedness and medical necessity of the services.
Plaintiff has filed a Motion for Final Summary Judgment attaching the detailed affidavit of the owner of the facility which authenticates and attaches the medical bills, details why the charges were billed at the amounts billed as well as that the patient received the services. The motion was originally set for January 6, 2015.
In opposition to Plaintiff’s Motion as to the lone remaining issue of reasonableness, the Defendant filed the affidavits of Dr. Randy Schulman and Dr. Bradley Simon.1 The hearing set for January 6, 2015 date was cancelled by the Court due to an emergency and reset to January 15, 2015.
Two days prior to hearing of Plaintiff’s reset motion on January 15, 2015, the Defendant served an “Amended” affidavit of Dr. Simon. Plaintiff contends the first 24 page affidavit executed by Dr. Simon could not possibly have been read by Dr. Simon prior to execution. The Plaintiff points out that this case involves one (1) date of chiropractic services. Dr. Simon’s 24 page affidavit includes the following facts and opinions: references the diagnostic industry (p.6), the Plaintiffs usual and customary and charge of $ 150.00 dollar per x-ray read (p.7),2 that in “this particular case, there was a grossly excessive number of charges implemented for physiotherapies on a weekly basis that far exceeded what was necessary in relation to the medical care provided, in relation to the injuries identified, and the charges for this type of physiotherapy that would be required under the circumstances almost without fail would fall below the amount that was charged on a per day basis in this case which was between $ 228.00 and $ 350.00 dollars”.3 Further, Dr. Simon states: “the justification and underlying medical care must be considered in determining the reasonableness of charges”.4 (p.23). Plaintiff contends Dr. Simon’s first 24 page affidavit could not possibly have been read by Dr. Simon prior to execution. Dr. Simon’s “Amended” affidavit executed two days before the reset summary judgment contains new opinions as to certain codes which support unpled defenses and opinions not previously disclosed. Dr. Simon also opines “a bare maximum of 150% of Medicare Part B for the year/period in question is the upper echelon of what could be qualified under any rational construction of fact as reasonable for the subject services”.
The Plaintiff provided the Court the Court’s own unpublished decision in Xtreme Chiropractic & Rehab Inc. (a/a/o Jeena Park) v. State Farm Mutual Automobile Insurance Company, Case No: 12-5544 COCE (53) (Broward County Court, February 27, 2014). The Court notes that Dr. Simon’s opinion in the Jeena Park case was that charges at more than 200% of the Medicare rate would not be reasonable. In that case, the Court found Dr. Simon’s opinion not admissible at trial. Rule 1.510(e). Further, the Court opined that Dr. Simon’s opinion was not based upon sufficient facts or data, nor is it demonstrated to be the product of reliable principles and methods. The Plaintiff points out that in a matter of a year Dr. Simon’s opinion has deviated an astounding 50% (from 200% of Medicare to 150% of Medicare) and could not possibly be the result of reliable principles and methods.
At the time of hearing on Plaintiff’s Motion for Final Summary Judgment, jury trial was set to commence within less than a week. Dr. Schulman had never been previously disclosed. Dr. Simon, by stipulation would not be testifying as to reasonablness but only as to related and necessity. The Defendant offered no explanation as why the Defendant was not honoring the stipulation.
Conclusions of Law The Court finds the Plaintiff has met its burden of establishing the reasonableness of the services. The Court does not consider the affidavit of Dr. Schulman as he was not disclosed pursuant to the Court’s August 1, 2014 Order requiring disclosure of witnesses nor is he listed as a witness on the agreed upon Joint Pretrial Stipulation executed by the parties. The Court finds that stipulations of the parties are to be strictly enforced Central Square Tarragon LLC v. Great Divide Insurance Company, 83 So.3d 911 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1467a]. The Defendant provided no explanation why it was not honoring the stipulation. The Court finds based on the stipulation that Dr. Simon is not permitted to testify as to matters outside of related and medical necessity. Further, the Court will not consider Dr. Simon’s affidavit as to reasonableness on summary judgment where the witness is not permitted to testify at trial. State Farm Fire and Casualty v. Champion Chiropractic & Rehab, Inc. (a/a/o Samantha Cafiero), 20 Fla. L. Weekly Supp. 482a (Broward Circuit Court, 2013).
Notwithstanding, even if the Court were to consider the affidavit of Dr. Simon, the Court would find the affidavit wholly unreliable in considering Dr. Simon’s conduct in signing an initial 24 page affidavit that makes no sense in the context of this case. The Court is concerned by the dual affidavits that are not just mere typos but substantively different affidavits. The first affidavit was clearly not reviewed by Dr. Simon and the differences substantive not technical.
Further, even if the Court were to substantively consider Dr. Simon’s affidavit, the Court finds Dr. Simon’s testimony insufficient in that the proffered opinion is not based upon sufficient facts or data, nor is it demonstrated to be the product of reliable principles and methods. Dr. Simon does not even set forth his own charges in his affidavit. Further, the Court adopts its reasoning in Xtreme Chiropractic & Rehab Inc. (a/a/o Jeena Park) v. State Farm Mutual Automobile Insurance Company, Case No: 12-5544 COCE (53) (Broward County Court, February 27, 2014).
ORDERED and ADJUUDGED that Plaintiff’s Motion for Final Summary Judgment is granted. This Order supplements the Order of January 15, 2015.
__________________
1The Defendant did not file an affidavit of Dr. Propper to contest reasonableness.
2There is no charge of $ 150.00 dollars in this case.
3There were no charges on a weekly basis at the amounts Dr. Simon alleges. There is only one date of service.
4Dr. Simon predicates his opinion as to reasonableness partially on the “grossly excessive number of charges” on a weekly basis. There were no such charges or vistits in this case.
