22 Fla. L. Weekly Supp. 285b

Online Reference: FLWSUPP 2202FAVEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of MRI charge where affidavit presents inadmissible lay opinion testimony and is conclusory — Fact that Medicare, workers’ compensation and other government payors pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge

QUANTUM IMAGING HOLDINGS LLC a/a/o KATHLEEN FAVEUR, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-02696 COCE 50. August 19, 2014. Honorable Peter B. Skolnik, Judge. Counsel: Emilio R. Stillo, for Plaintiff. Justin Cincola, Norma G. Kassner, and Eric Belsky, for Defendant.

ORDER GRANTING PLAINTIFF’S AMENDEDMOTION FOR FINAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on May 21, 2014 on Plaintiff’s, QUANTUM IMAGING HOLDINGS LLC a/a/o KATHLEEN FAVEUR, Amended Motion for Final Summary Judgment, 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:

On October 24, 2013, the parties entered an Agreed Order stipulating that the sole remaining issue was the reasonableness of Plaintiff’s charge of $1,750.00 per diagnostic magnetic resonance imaging scan. The date of service in the instant case is November 8, 2010. The Plaintiff billed a total of $1,400.00. The Defendant paid $112.74. The amount sought by the Plaintiff is $1,287.26. In support of its Amended Motion for Final Summary Judgment, Plaintiff submitted and timely filed the affidavits of the clinic owner Dr. Steven Burack as well as the billing manager and records custodian Stephanie Preston.

Dr. Burack attests that he is the person responsible for determining the charges. Dr. Burack attests this was done in part through a survey of various MRI providers that are located in the same geographic area including Pembroke Pines MRI, A-1 Imaging, Signet Diagnostic Imaging Services, Open MRI of Weston, Memorial Hospital West and others. Dr. Burack also attests that he reviewed the business records of Quantum Imaging and that the following companies have paid the charges in full: GEICO’s various entities, Progressive’s various entities, Security National Insurance Company, Equity Insurance Company, Florida Farm Bureau Insurance Company, United Automobile Insurance Company, Windhaven Insurance Company, Safeco Insurance Company, Great American Insurance Company, Star & Shield Insurance Exchange, Victoria Fire & Casualty Company, Mercury Insurance Company, Metropolitan Insurance Company, Kingsway Amigo Insurance Company, Esurance Insurance Company and Nationwide Insurance Company. Dr. Burack also attests that he reviewed the MAG Mutual Healthcare Solutions’ 2009 Physicians’ Fee & Coding Guide. This book provides a fee range for the applicable CPT Codes in this case. The applicable pages from the book are attached to Dr. Burack’s affidavit. Quantum’s charges fall within this book’s range. Dr. Burack attests that the amount charged by Quantum Imaging for magnetic resonance imaging studies for the geographical area of West Broward County is reasonable in price.

Records custodian and billing manager, Stephanie Preston, attests that upon her employment with Quantum Imaging she conducted her own market survey to attest as to the reasonableness of the charges. Ms. Preston attests she spoke with various MRI providers including Hallandale Open MRI, Stand-Up MRI, Plantation Open MRI and Windsor Imaging regarding the charges and reimbursements. Ms. Preston also attests she conducted an internal survey which reflected that the following insurers have paid Quantum’s charges in full: GEICO’s various entities, Progressive’s various entities, Security National Insurance Company, Equity Insurance Company, Florida Farm Bureau Insurance Company, United Automobile Insurance Company, Windhaven Insurance Company, Safeco Insurance Company, Great American Insurance Company, Star & Shield Insurance Exchange, Victoria Fire & Casualty Company, Mercury Insurance Company, Metropolitan Insurance Company, Kingsway Amigo Insurance Company, Esurance Insurance Company and Nationwide Insurance Company. The affidavit incorporates and attaches the drafts received from these various insurers as well as establishing the business records predicate for admission of these drafts. Further, Ms. Preston attests that the Defendant, United Automobile Insurance Company, has also paid Plaintiff’s charges in full and attaches the applicable drafts. Ms. Preston also attests that she periodically checks with other providers to verify that the amount charged by the Plaintiff is within the range of what other providers are charging.

The Court finds the Plaintiff’s affidavits satisfy Plaintiff’s burden to prove its charge of $1,750.00 per MRI service is reasonable. United Auto. Ins. Co. v. Hallandale Open MRI, LLC (a/a/o Antonette Williams, Case No.12-19662CACE (AP) (Fla.17th Cir. Ct. December 11, 2013) [21 Fla. L. Weekly Supp. 399d]; Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So. 2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c]; Pan Am Diagnostic Servs., Inc, (a/a/o Fritz Telusma) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. Broward County, Cnty. Ct. 2013)(Robert W. Lee, J.). The Court further finds the Defendant is not permitted to pay Plaintiff’s bills based on 200% of Medicare as a matter of law because the Defendant did not plead it, did not argue it was entitled to pay 200% of Medicare as a matter of law and did not make this clear election in its policy of insurance. See GEICO v. Virtual Imaging, 38 Fla. L. Weekly S517a (Fla. 2013).

In opposition to Plaintiff’s Motion for Final Summary Judgment, the Defendant has filed the affidavit of Corporate Representative, Records Custodian and “Reasonableness Expert” Lizbeth Velazquez, as well as the deposition testimony of Dr. Steven Burack, Stephanie Preston and Carmen Perez. On March 14, 2014, the Defendant withdrew Lizbeth Velazquez as an “Expert Witness”. Plaintiff argues the Defendant failed to establish a disputed issue of material fact through Lizbeth Velazequez’s affidavit or the filed depositions. The Court agrees with the Plaintiff.

Once a party moving for summary judgment presents competent evidence to support its motion for summary judgment, that party is entitled to summary judgment unless the non-moving party can come forward with competent evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla. 1979). Under Rule 1.510 (e), a court may consider evidence at a summary judgment hearing only if it would be “admissible in evidence”.

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, the Defendant has failed to present competent, admissible evidence to rebut Plaintiff’s prima facie showing that their charge was, in fact, reasonable as reasonable is a range and not a set number.

The Defendant relies upon the affidavit of Lizbeth Velazquez. Plaintiff argues the Defendant failed to establish a triable issue through Ms. Velazquez’s affidavit. This Court agrees with the Plaintiff.

To the extent the Defendant relies upon Lizbeth Velazquez as its corporate designee and fact witness, the affidavit fails to present admissible evidence which would create a genuine issue of material fact. The opinion offered (that 200% of Medicare is a reasonable amount for the service at issue) is inadmissible lay opinion testimony. 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); Hallandale Open MRI, LLC., (a/a/o Guerda Pierre) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 709a (Fla. Broward County, Cnty. Ct. 2014) (Peter B. Skolnik, J.); Plantation Open MRI, LLC (a/a/o Licia Scott) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 702a (Fla. Broward County, Cnty. Ct. March 18, 2014) (Peter B. Skolnik, J.); Millennium Radiology, LLC d/b/a Millennium Open MRI (a/a/o Melvin Galdamez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Fla. Broward County, Cnty. Ct. 2013) (Robert W. Lee, J.); Millennium Radiology (a/a/o Dennyssee Dieguez) v. United Auto. Ins. Co., Case No. 11-24154 COCE (53) (Fla. Broward County, Cnty. Ct. December 19, 2013) (Roberto W. Lee, J.); High Definition Mobile MRI, Inc. (a/a/o Jean Dieujuste) v. State Farm Mutual Auto. Ins. Co., Case No. 12-14694 COCE (53) (Fla. Broward County, Cnty. Ct. September 23, 2013) (Robert W. Lee, J.); See also United Auto. Ins. Co. v. Miami Neurology Rehabilitation Specialists (a/a/o Maria Broche), 19 Fla. L. Weekly Supp. 799a (11th Cir. Ct. 2012)(appellate capacity) (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). Essentially, Defendant’s corporate designee’s opinion is that 200% of Medicare is the amount United Automobile found to be reasonable, so she agrees with that. Thus, as a matter of law, the opinions offered by Lizbeth Velazquez are not rationally based on her own perception and are not the type of lay opinions which can be relied upon by the Defendant.¹ In addition, conclusory statements are not adequate to create an issue of fact and are insufficient to avoid a summary judgment.

In her affidavit, Ms. Velazquez, a fact witness, completely excludes consideration of any amounts above 200% of Medicare in reaching her ultimate conclusion that an amount equal to 200% of Medicare is a reasonable charge. Ms. Velazquez also excludes the numerous payments in full made by this very Defendant United Automobile Insurance Company in making that determination as well.

Ms. Velazquez’s affidavit is insufficient to create a triable issue. Essentially, Ms. Velazquez states in her affidavit that she has knowledge and experience in the insurance industry but she has no knowledge or relevant experience in the medical field. Hallandale Open MRI, LLC (a/a/o Lashonda Shaw) v. United Auto. Ins. Co., Case No. 12-01796 CONO 73 (Fla. Broward County Court, Cnty. Ct. June 2, 2014)(DeLuca, J.); Pan Am Diagnostics Services Inc dba Wide Open MRI (a/a/o Ryan Martinez) v. United Auto Ins. Co., Case No. 13-001286 CONO 73, (Fla. Broward County, Cnty. Ct. June 2, 2014)(DeLuca, J.). Her affidavit is nothing more than hearsay, self serving conclusions and incomplete as well as failing to attach documents.

The Defendant’s affiant also states that the Plaintiff has accepted as full reimbursement in at least 42 claims amounts at or below 200% of Medicare. The affiant has also identified other providers who have purportedly “accepted” 200% of Medicare or less in other unidentified claims. The Court has granted Plaintiff’s Motion in Limine and excluded testimony as to these purported claims.² Accordingly, as this evidence is inadmissible at trial it will not be considered on summary judgment. Hallandale Open MRI, LLC., (a/a/o Guerda Pierre) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 709a (Fla. Broward County, Cnty, Ct. 2014) (Peter B. Skolnik, J.); Plantation Open MRI, LLC (a/a/o Licia Scott) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 702a (Fla. Broward County, Cnty. Ct. March 18, 2014) (Peter B. Skolnik, J.); Champion Chiropractic & Rehab, Inc. (a/a/o Fabio Orozco-Murillo) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 370a (Fla. Broward County, Cnty. Ct. 2013) (Sharon L. Zeller, J.); Pan Am Diagnostic Servs, Inc. (a/a/o Fritz Telusma) v. United Auto, Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. Broward County, Cnty. Ct. 2013) (Robert W. Lee, J.); Millennium Radiology, LLC., d/b/a Millennium Open MRI (a/a/o Melvin Galdamez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Fla. Broward County, Cnty. Ct. 2013) (Robert W. Lee); Pan Am Diagnostic Servs, Inc. (a/a/o Demetrius A. Sears) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp 937a (Fla. Broward County, Cnty. Ct. 2013) (Robert W. Lee, J.); See also State Farm Fire & Cas. Co. v. Champion Chiropractic & Rehab, Inc., 20 Fla. L. Weekly Supp. 482a (Fla.17th Cir. Ct. 2013) (appellate capacity); High Definition Mobile MRI, Inc. (a/a/o Jean Dieujuste) v. State Farm Mutual Auto. Ins. Co., Case No. 12-14694 COCE (53) (Fla. Broward County, Cnty. Ct. September 23, 2013) (Robert W. Lee, J.); RDC Imaging Corp. (a/a/o Jean Francois Edner) v. State Farm Mutual Auto. Ins. Co., Case No. 12-17145 COCE (53) (Fla. Broward County, Cnty. Ct. September 9, 2013)(Robert W. Lee, J.). Further, reasonableness is a range and is not just one number, Hallandale Open MRI, LLC., (a/a/o Guerda Pierre) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 709a (Fla. Broward County, Cnty. Ct. 2014) (Peter B. Skolnik, J.); Plantation Open MRI, LLC (a/a/o Licia Scott) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 702a (Fla. Broward County, Cnty. Ct. March 18, 2014) (Peter B. Skolnik, J.); Pan Am Diagnostic Servs, Inc. (a/a/o Fritz Telusma) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. Broward County, Cnty. Ct. 2013) (Robert W. Lee, J.).

The Defendant also relies on the October 2013 deposition testimony of Dr. Burack wherein he testified that he has accepted Medicare payments from Medicare patients and health insurance. There were a total of 8 or 9 Medicare patients. All health insurance and Worker’s Compensation contracts were entered into in 2012 well after the date of service in the instant case. The Medicare certification was not applied for until December 2012 well after the date of service in the instant case. Further, it is undisputed that Medicare is not insurance. Hallandale Open MRI, LLC., (a/a/o Guerda Pierre) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 709a (Fla. Broward County, Cnty. Ct. 2014) (Peter B. Skolnik, J.); Hallandale Open MRI, LLC (a/a/o Ulysees Moore) v. State Farm Mutual Auto. Ins. Co., 21 Fla. L. Weekly Supp. 812a (Fla. Broward County, Cnty. Ct. 2014)(Louis H. Schiff, J.); Hallandale Open MRI, LLC (a/a/o Jean Desir) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 836a (Fla. Broward County, Cnty. Ct. 2014)(John D. Fry, J.). Rather, Medicare is social welfare. Hallandale Open MRI, LLC (a/a/o Rose Augustin) v. State Farm Mutual Auto. Ins. Co., 21 Fla. L. Weekly Supp. 818a (Fla. Broward County, Cnty. Ct. 2014)(Steven P. DeLuca, J.) citing Atkins v. Allstate, 382 So.2d 1276 (Fla. 3d DCA 1980)(“But the basic fact is that Medicare is a social welfare program and not an insurance or reimbursement plan with 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.”) See also Hialeah Med. Assoc, Inc (a/a/o Ana Lezcano) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp 487b (Fla. 11th Jud. Cir. March 7, 2014)(Appellate Capacity), rhng. den. The simple fact that Medicare, Workers Compensation and other government based payors, by themselves, pay less than the billed amount does not, and cannot, create a triable issue that the charges are unreasonable as to price. See Plantation Open MRI, LLC, (a/a/o Licia Scott) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 702a (Fla. Broward County, Cnty. Ct. March 18, 2014) (Peter B. Skolnik, J.); Open Magnetic Scanning LTD d/b/a Windsor Imaging (a/a/o Princesse Beacuchamp) v. United Auto. Ins. Co., Case No. 11-23954 COCE (54), (Fla. Broward County, Cnty. Ct. March 2014) (Gary Cowart, J.). Hallandale Open MRI, LLC (a/a/o Richard Ayer) v. State Farm Mutual Auto. Ins. Co., 21 Fla. L. Weekly Supp. 837a (Fla. Broward County, Cnty. Ct. 2014)(Steven P. DeLuca, J.); Millennium Radiology, LLC d/b/a Millennium Open MRI (a/a/o Mary Butler) v. State Farm Fire and Cas. Co., 21 Fla. L. Weekly Supp. 811a (Fla. Broward County, Cnty. Ct. 2014)(John D. Fry, J.); Douglas Rapid Rehabilitation, Inc. (a/a/o Nicole Bowen) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 816a (Fla. Broward County, Cnty. Ct. 2014)(Louis H. Schiff, J.); Hallandale Open MRI LLC (Rosario Ham) v. State Farm Mutual Automobile Insurance Company, 21 Fla. L. Weekly Supp. 586b (Fla. Broward County, Cnty. Ct. 2014)(Steven P. DeLuca, J.). 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. 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 does not mean the Plaintiff’s charge in unreasonable and has no probative value. Further, the Court has excluded this evidence at trial.³ Therefore, the same is inadmissible for summary judgment purposes. Reasonableness is a range and not just one number, Millennium Radiology, LLC., d/b/a Millenium Open MRI (a/a/o Melvin Galdamez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Fla. Broward County, Cnty. Ct. 2013) (Robert W. Lee, J.); High Definition Mobile MRI, Inc. (a/a/o Jean Dieujuste) v. State Farm Mutual Auto. Ins. Co., Case No. 12-14694 COCE (53) (Fla. Broward County, Cnty. Ct. September 23, 2013) (Robert W. Lee, J.); RDC Imaging Corp. (a/a/o Jean Francois Edner) v. State Farm Mutual Auto. Ins. Co., Case No. 12-17145 COCE (53) (Fla. Broward County, Cnty. Ct. September 9, 2013)(Robert W. Lee, J.). Defendant has presented no admissible evidence that Plaintiff’s charge is outside the range of what is reasonable.

It is well settled that in order to take advantage of the more limited reimbursement provided by Fla. Stat. § 627.736 (5)(a)(2)(f), the insurer must specify that method to the exclusion of any others. Geico General Insurance Co. v. Virtual Imaging Services Inc. (“Virtual II”), 90 So.3d 321 (Fla.3d DCA 2012) [37 Fla. L. Weekly D985b] aff’d ___ So.3d ___, 2013, WL3332385 (Fla. 2013); DCI MRI, Inc. v. Geico Co., 79 So. 3d 840 (4th DCA 2012) [37 Fla. L. Weekly D170e]; Geico Indem. Co. v. Virtual Imaging Services Inc. (“Virtual I”), 79 So.3d 55 (Fla.3d DCA 201) [36 Fla. L. Weekly D2597a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. Defendant is not permitted to use the “200% Medicare” as the exclusive methodology to limit reimbursement unless it can demonstrate that amount is the maximum reasonable amount under some alternative means. Geico. Indem. Co. v. Virtual Imaging Services, Inc. (“Virtual I”), 79 So.2d 55, 57 (Fla.3d DCA 2011) [36 Fla. L. Weekly D2597a] (“Furthermore, as section 627.736(5)(a)(2) provides that insurers “may” consult the Medicare fee schedule, it follows that, under the statute, insurers who choose not to do so have the recourse to some alternative means for determining a reimbursable amount.”).

For the reasons stated above, the Court finds there is no question of fact for a jury.

Accordingly, it is hereby

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

__________________

¹This matter as well as 14 other cases between these same parties, came before the Court the same day. The Plaintiff noted that although the Defendant employed four different adjusters on the 15 cases, their affidavits are identical.

²See the Court’s Order on Plaintiff’s Motion in Limine regarding Purported Settlements made by the Defendant in Other Claims.

³See the Court’s Order on Plaintiff’s Motion in Limine to Exclude Any Reference to Health Insurance and Medicare.