22 Fla. L. Weekly Supp. 271b
Online Reference: FLWSUPP 2202MEJIInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Where it is undisputed that insurer did not adopt permissive statutory fee schedule in PIP policy, it is precluded from relying on Medicare Part B fee schedule in reimbursement of claim — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affiant’s opinions are not based on sufficient facts or data and are not product of reliable principles and methods
ROBERTO RIVERA-MORALES, M.D., (a/a/o Fabian A. Mejia-Quintero), Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 12-03399 SP 26 (04). June 19, 2014. Honorable Lawrence D. King, Judge. Counsel: Zachary Hicks, Berger & Hicks, P.A., Miami, for Plaintiff. Luis Perez, Perez & Rodriguez, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND FINAL JUDGMENT
This cause came before the Court on May 1, 2014, on Plaintiff’s Motion for Summary Judgment. The Court, having reviewed the motions and entire Court file, heard argument of counsel, reviewed relevant legal authority, and been otherwise advised in the premises, makes the following findings of fact and conclusions of law:Findings of Facts
The material facts in this case are not in dispute. Fabian A. Mejia-Quintero was involved in a motor vehicle accident on January 25, 2011, while in a vehicle insured by Defendant, State Farm Mutual Automobile Insurance Company. The policy in effect provided for personal injury protection (“PIP”) coverage under the Florida No Fault Statute. Mr. Mejia-Quintero received services from Plaintiff, Roberto Rivera-Morales, M.D. The subject policy of insurance required Defendant to pay 80% of all reasonable expenses. See the deposition of the Lisa Nazouri filed by Plaintiff. Defendant issued payment to Plaintiff for his services at 80% of 200% of participating physicians fee schedule of Medicare Part B. See deposition of Liza Nazouri. The amount in controversy is the difference between 80% of the billed amount and the paid amount. The parties stipulate that Plaintiff’s Motion for Summary Judgment is granted with regard to relation and medical necessity, as well as, Defendant’s Second Affirmative Defense regarding standing. Defendant previously withdraw is First Affirmative Defense.Standard
Summary Judgment is proper if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. “In reviewing a summary judgment, this Court must consider evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party.” Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a](quoting Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D577a]). “When the non-moving party has raised affirmative defenses, it is incumbent upon the moving party to disprove the affirmative defenses or establish their legal insufficiency.” Id. (citing Parker v. Dinsmore Co., 443 So. 2d 356 (Fla. 1st DCA 1983)(quoting Proprietors Ins. Co. v. Siegel, 410 So. 2d 993, 995 (Fla. 3d DCA 1982)).Conclusions of Law
There is only one issue remaining for the Court’s determination; namely, whether summary judgment should be granted regarding the reasonableness of Plaintiff’s charges. The Court answers in the affirmative and grants Plaintiff’s summary judgment as to reasonableness.
In support of its Motion for Summary Judgment, Plaintiff filed the Affidavit of Roberto Rivera Morales, M.D. Dr. Rivera-Morales testifies that his charges are reasonable because they are within the range of usual and customary charges for the community in which Plaintiff operates, and are indicative of previous amounts Plaintiff has accepted from other insurers. The Court finds that the Affidavit of Roberto Rivera Morales, M.D. satisfies Plaintiff’s burden of production as to the reasonableness of its charges. See State Farm Mutual Auto. Ins. Co. v. Multicare Medical Ctr. Inc. et. al, 12 Fla. L. Weekly Supp. 33a (Fla. 11th Cir. App. 2004).
The Court must now consider any evidence filed by Defendant in opposition to Plaintiff’s Motion. As stated above, Defendant reimbursed Plaintiff’s bill at 80% of 200% of the Medicare Part B fee schedule, the methodology outlined by Florida Statute §627.736(5)(a)(2)(a-f). It is undisputed, however, that State Farm did not adopt the statutory fee schedule into its policy of insurance as expressly required under the law. See Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 2013 WL 3332385, 38 Fla. L. Weekly S517a (Fla. 2013). Furthermore, Defendant’s representative also testified that the Medicare Part B fee schedule was the only factor considered by Defendant when determining that Plaintiff’s charge was not reasonable. See deposition of Liza Nazouri. While the Geico Court held that an insurer could perform a fact based reasonableness inquiry under Florida Statute §627.736(5)(a)(1), such inquiry can not result in the use of only Medicare fee schedules to the exclusion of all other methods. See id.; see also All X-Ray Diagnostic Services, Corp. a/a/o Maria Becerra v. State Farm Mutual Auto. Ins. Co., Case No. 11-04473 SP 26 (04) (Miami-Dade Cty. Ct. Apr. 16, 2014); Hialeah Medical Assoc., Inc. a/a/o Ana Lexcano v. United Auto. Ins. Co., Case No. 12-229 AP (Fla. 11th Cir. App. 2014) [21 Fla. L. Weekly Supp. 487b] (holding that Medicare Fee Schedules are not relevant in PIP cases and should not be used). The Court also finds that Medicare is not insurance and is not “applicable to automobile and other insurance coverages” as defined in §627.736(5)(a)(1). See Atkins v. Allstate Ins. Co., 382 So. 2d 1276 (Fla. 3d DCA 1980) (holding that Medicare is a social welfare program and not insurance). Therefore, based on the above cited testimony and case law, the Court finds that Defendant is precluded from relying upon the Medicare Part B fee schedule in the reimbursement of Plaintiff’s claim as a matter of law.
Additionally, in opposition to Plaintiff’s Motion, Defendant filed the Affidavit of Darrell Spell. Plaintiff contends that the opinions contained in Mr. Spell’s Affidavit are not based on sufficient facts or data to be considered by this Court under the recently adopted Daubert standard. See Fla. Stat. § 90.702 (2014). Under the new standard, a party faces a greater burden in presenting expert opinion than it did under the former law. Under the new law, the proponent of the opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data.” See Pan Am Diagnostics, Inc. v. United Automobile Ins. Co., 21 Fla. L. Weekly Supp. 200a (Broward Cty. Ct. Oct. 1, 2013). In essence, under the Daubert standard, the trial court is the gatekeeper of evidence. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 290 (1993). After analyzing the opinion of Mr. Spell under the applicable Daubert standard, the Court finds that Mr. Spell’s Affidavit fails to create a genuine issue of material fact. The Court finds that Mr. Spell is not competent to be an expert witness in this matter under Florida Statute § 90.702 because Mr. Spell’s opinions are not based upon sufficient facts or data, and are not the product of reliable principles and methods. Mr. Spell’s opinion and Affidavit ignore the data regarding what other radiologists and medical providers charge for the same CPT codes that are at issue in the case at bar, despite the fact that both the controlling statute and State Farm’s own amendatory policy endorsement 6910.3 state that this information may be considered. Conversely, Darrell Spell states that information regarding customary charges in the community is “not relevant to the determination of the reasonableness of the charges in this case.” Furthermore, Mr. Spell admits that he has no information regarding what the provider involved in the dispute has accepted as payment for his services. In his analysis, Mr. Spell also attempts to review reimbursement levels in the community but only considers data compiled by health insurance companies and Medicare, while excluding reimbursements made by PIP insurers and cash paying patients. As stated above, it has been well established that Medicare is not insurance, is not relevant in PIP cases, and should not be used unless the appropriate policy election has been made. See Atkins, 382 So. 2d 1276; Hialeah Medical, 21 Fla. L. Weekly Supp. 487b.
Lastly, this Court is cognizant of the numerous orders from fellow judges in Broward, Volusia, Miami-Dade, Hillsborough, and Hernando Counties that specifically hold that Mr. Spell’s data and opinions should not be considered in these matters for similar reasons outlined above. Someone who simply complies and analyzes numbers is not considered an expert. Weaver v. Corey, 111 So. 3d 947 (Fla. 2nd DCA 2013) [38 Fla. L. Weekly D874d]. Therefore, based on the foregoing reasons, Defendant has no come forward with any admissible evidence demonstrating Plaintiff’s charge is unreasonable.
Accordingly, it is ORDERED and ADJUDGED, that Plaintiff’s Motion for Summary Judgment is hereby GRANTED.
