22 Fla. L. Weekly Supp. 833b
Online Reference: FLWSUPP 2207CLAVInsurance — 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 x-ray charges where affidavits are conclusory, lack foundation, and are contrary to insurer’s previous position, and affiants are not qualified to render opinion on reasonableness of charges — Insurer is precluded from relying on Medicare fee schedule to determine reimbursement level when it did not adopt fee schedule in its policy
ROBERTO RIVERA-MORALES, M.D., (a/a/o Humberto Clavijo), 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. 12-03614 SP 26 (03). October 31, 2014. Honorable Michaelle Gonzalez-Paulson, Judge. Counsel: Martin I. Berger, Berger & Hicks, P.A., Miami, for Plaintiff. David Bender, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT
This cause came before the Court on August 25, 2014, on Plaintiff’s Motion for Summary Judgment. The Court, having reviewed the motion 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
Humberto Clavijo was involved in a motor vehicle accident on November 18, 2010, 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. Clavijo received services from Plaintiff, Roberto Rivera-Morales, M.D. The subject policy of insurance required Defendant to pay 80% of all reasonable medical expenses. Defendant issued payment to Plaintiff for his services at 80% of 200% of participating physician’s fee schedule of Medicare Part B. The amount in controversy is the difference between 80% of the billed amount and the paid amount.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
The issue for the Court’s determination is whether summary judgment should be granted regarding the reasonableness of Plaintiff’s charges, the relation of the services to the subject motor vehicle collision, and the medical necessity of the services. The Court answers in the affirmative and grants Plaintiff’s summary judgment as to reasonableness, relation, and medical necessity.
I. Plaintiff Met Its Burden of Production
In support of its Motion for Summary Judgment, Plaintiff filed the Affidavit of Paul H. Wand, M.D. and the Affidavit of Roberto Rivera Morales, M.D. Dr. Wand testifies that the subject services, which he ordered, are related and medically necessary within a reasonable degree of medical certainty. The Court, having reviewed the opinion of Dr. Wand, finds Dr. Wand to be competent under the law to testify as to the relation and medical necessity of the subject services. Therefore, Plaintiff has satisfied its burden as to the relation and medical necessity of the services at issue. Plaintiff also filed the Affidavit of Roberto Rivera Morales, M.D. The deposition of Roberto Rivera Morales, M.D. was also made part of the Court record. Dr. Rivera-Morales testifies in his affidavit 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 automobile insurers. The Court finds that the affidavit and deposition testimony of Roberto Rivera Morales, M.D. satisfy 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); see also Pan Am Diagnostic Services, Inc. a/a/o Fritz Telusma v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Broward Cty. Ct. Oct. 1, 2013).
II. Defendant’s Evidence In Opposition
The Court must now consider any evidence filed by Defendant in opposition to Plaintiff’s Motion. Defendant filed the Affidavit of Michael S. Propper, M.D. and the Affidavit of Darrell Spell, FSA, MAAA. Before addressing the specific opinions raised by the above referenced affidavits, on February 4, 2014, Plaintiff took the deposition of Defendant’s Florida Rule of Civil Procedure 1.310(b)(6) Corporate Representative, Victoria Cabrera. See Deposition Transcript of Victoria Cabrera filed by Plaintiff. Two of the areas of inquiry for which a corporate representative was designated were regarding Defendant’s corporate position on the medical necessity and relation of the services at issue. Defendant’s corporate representative testified that State Farm made the determination that $71.30 of Roberto Rivera-Morales’ bill for date of service January 1, 2011 were reasonable, related, and medically necessary. See Deposition Transcript of Victoria Cabrera at 26:8. Defendant’s corporate representative further testified that “the x-rays were related to the automobile accident.” See Deposition Transcript of Victoria Cabrera at 27:17. Finally, upon cross examination by Defense counsel, Defendant’s corporate representative solely testified that it was not waiving Plaintiff’s burden to prove the reasonableness, relation, and medical necessity of its claim. Clearly, while Defendant is permitted to contest reasonableness, relation, and medical necessity of a claim even after issuing payment, Defendant affirmatively took a corporate position that the services were related and medically necessary so long as Plaintiff met its burden of production. On the eve of Plaintiff’s Motion for Summary Judgment, however, Defendant sought to change its established corporate position and filed the Affidavit of Michael S. Propper, M.D. to contest the reasonableness, relation, and medical necessity of Plaintiff’s services. Defendant is not permitted to change its affirmatively established position solely to avoid summary judgment. Florida Courts have consistently held that a party who opposes summary judgment will not be permitted to alter the position of its previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment. See Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069, 1070 (Fla. 3d DCA 1977); see also Maryland Cas. Co. v. Murphy, 342 So. 2d 1051 (Fla. 3d DCA 1977) (holding that the law looks with disfavor on a party’s attempt to change its testimony to avoid summary judgment); Randle v. Randle, 274 So. 2d 557 (Fla. 3d DCA 1973) (upholding the denial of a motion to amend answer well into litigation and just prior to a hearing on a motion for summary judgment); Noble v. Memorial Hospital Ass’n Inc., 710 So. 2d 567 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D58a]; Versen v. Versen, 347 So. 2d 1047 (Fla. 4th DCA 1977). Defendant’s actions in this case contravene well establish judicial precedent which seeks to prevent a party from changing its positions and assert new issues for the sole purpose of avoiding summary judgment. Plaintiff, after relying on the testimony of Defendant’s corporate representative, moved for summary judgment. Based on the above case law, it is procedurally inappropriate and highly prejudicial to Plaintiff for Defendant to now present an Affidavit contradicting the corporate position previously established at the deposition of Defendant’s 1.310(b)(6) Corporate Representative deposition.
In addition to the above, after reviewing the Affidavit of Michael S. Propper, M.D. filed by Defendant in this matter, the Court finds that the opinions contained in Dr. Propper’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 standard, a party faces a greater burden in presenting expert opinion than it did under the former law. Under Daubert, 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 opinions of Dr. Propper under the applicable Daubert standard, the Court finds that Affidavits fails to create a genuine issue of material fact.
Dr. Propper’s testimony is not based upon sufficient facts or data and the affidavit fails to attach those volumes relied upon in support of the opinion rendered. The Court also finds Dr. Propper’s Affidavit to be conclusory and in contradiction to the testimony of Defendant’s corporate representative. Dr. Propper testifies that the subject x-rays were not medically necessary based upon the Annals of Internal Medicine and JAMA yet fails to specifically cite or attach the portions of these publications to which he is referring and relying on for his opinion as required under Florida Rule of Civil Procedure 1.510(e). Dr. Propper also testifies that the x-rays were not necessary because they were done to benefit the medical practice and not the patient, however once again fails to offer any underlying evidence or data to support this conclusion. Facts or data to support the above conclusions are particularly warranted in this case where the prescriber of the services is not the same entity as the provider performing and billing for the service at issue. Finally, Dr. Propper opines that the billing at issue is not reasonable because the “insurance company was within the type B Medicare guidelines” and that is “common reimbursement and within the standard of care for the area.” As discussed above, Defendant did not properly adopt the Medicare Part B fee schedule in this case, and was not entitled to limit reimbursement to same. See Virtual, supra. Dr. Propper also fails to give any testimony as to what area he is referencing in his opinion or what knowledge, experience, or skill he has with regard to billing for the reading and interpretation of x-rays in Broward County, FL. See Pan Am Diagnostic Services, Inc. d/b/a Wide Open MRI a/a/o Dana Jackson v. State Farm Mutual Auto. Ins. Co., Case No. 12-14575 COCE 53 (Fla. Broward Cty. Ct. Jul. 18, 2014) (finding that Dr. Propper did not satisfy the strict requirements of Florida Statute § 90.702 where State Farm failed to demonstrate that Dr. Propper has sufficient experience, knowledge, or skill with regard to operating a diagnostic facility to qualify him as an expert): see also Coastal Radiology, LLC a/a/o Daniel Fornes v. State Farm Mutual Auto. Ins. Co., Case No. 12-21897 COCE 53 (Fla. Broward Cty. Ct. Jul. 17, 2014) [22 Fla. L. Weekly Supp. 396a]. Therefore, based on the above reasons, Dr. Propper’s testimony fails to create a genuine issue of material fact regarding reasonableness, relation, and medical necessity.
As it further pertains to the reasonableness of Plaintiff’s charges, as stated above, Defendant reimbursed Plaintiff’s bill at 80% of 200% of the Medicare Part B fee schedule. The very 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 corporate 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 Victoria Cabrera at 21:4. While the Virtual Court held that an insurer could perform a fact based reasonableness inquiry under Florida Statute §627.736(5)(a)(1), such inquiry cannot 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.
Defendant also filed the Affidavit of Darrell Spell in opposition to Plaintiff’s Motion for Summary Judgment. Mr. Spell solely opines on Plaintiff’s charges. 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 not 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.
