22 Fla. L. Weekly Supp. 508a
Online Reference: FLWSUPP 2205CAMPInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court did not abuse its discretion by excluding opposing affidavit filed by insurer on issue of reasonableness of MRI charge where affiant had no personal knowledge of charges in community and could not attest to truthfulness or reliability of data used to form his opinion that medical provider’s charge was not reasonable — Evidence that medical provider routinely accepted less from other vendors than it charged insurer for same services may be relevant in determining whether charges were unreasonable, but that information alone, even if uncontested, is not sufficient to prove that charges were unreasonable
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellant, vs. NEW SMYRNA IMAGING LLC, as assignee of Ryan Campbell, Appellee. Circuit Court, 7th Judicial Circuit (Appellate) in and for Volusia County. Case Nos. 2013-10005-APCC, 2013-10006-APCC, 2013-10007-APCC, 2013-10008-APCC, 2013-10009-APCC, 2013-10010-APCC, 2013-10011-APCC, 2013-10012-APCC, 2013-10013-APCC, 2013-10014-APCC, 2013-10015-APCC, 2013-10016-APCC, 2013-10017-APCC, 2013-10018-APCC, 2013-10019-APCC, 2013-10020-APCC, 2013-10021-APCC, 2013-10022-APCC, 2013-10023-APCC, 2013-10024-APCC, 2013-10025-APCC, 2013-10026-APCC, 2013-10027-APCC, 2013-10028-APCC, 2013-10029-APCC, 2013-10030-APCC. September 11, 2014. Order Denying Motion for Rehearing filed October 20, 2014. Counsel: Kimberly Simoes, The Simoes Law Group, P.A., Deland, for Plaintiff. Kenneth Hazouri, Orlando, for Defendant.OPINION
(PERKINS/PARSONS, Judges.) This is a consolidated appeal of 26 PIP cases in which the medical provider, New Smyrna Imaging (NSI), seeks payment of its charges for treatment provided to State Farm’s insureds. One such case involved an MRI of the cervical spine performed by NSI for Ryan Campbell, a State Farm insured. NSI charged Campbell $1,695.00 and STATE FARM only paid $1,066.28. NSI sued to recover the balance plus interest, attorneys’ fees and costs. The trial court granted NSI’s Motion for Summary Final Judgment and entered Final Judgment for $653.72 in favor of NSI and against STATE FARM. This appeal timely followed. The Campbell claim is representative of all 26 of these claims where a variety of radiologic services were provided by NSI to State Farm insureds and State Farm paid less than the amount billed.
Here, there is no dispute in any of the cases that the medical treatment was medically necessary, related to a motor vehicle accident and covered as a PIP benefit. The only issue was whether the charge for the service (i.e. MRI, X-ray) was reasonable. NSI claims that STATE FARM must pay NSI’s actual charge for treatment unless the charge is “unreasonable” under the criteria set in §627.736(5)(a). STATE FARM contends that they only have to pay “a reasonable sum” and NSI’s charges are not reasonable.
The Florida Motor Vehicle No-Fault Law requires that the owner of a motor vehicle maintain Personal Injury Protection Insurance (“PIP”) on that vehicle. §§627.730-627.7405, Fla. Stat. (2010), Further, every PIP policy must provide coverage for “eighty percent of all reasonable expenses for medically necessary medical . . . services.” 627.736(1)(a). Correspondingly, a medical provider “may charge the insurer and injured party only a reasonable amount §627.736(5)(a)1.”
The parties agree that STATE FARM chose a “reasonable” payment methodology, as set forth in §627.736(5)(a)l. Accordingly, their obligation is to pay reasonable charges. Much discussion below and in the briefs was devoted to STATE FARM’s decision to pay all charges based on 200% of the Medicare Part B reimbursement schedule. In fact, each and every payment made by STATE FARM to NSI was limited to this reimbursement schedule. Although §672.736(5)(a)2 (2013) allows a PIP insurer to designate a particular reimbursement schedule in the policy, STATE FARM did not designate any particular schedule in its policy and, so, did not select this “permissive” methodology. Accordingly, the issue for the court is not whether the amount STATE FARM paid based on 200% of the Medicare Part B Fee Schedule was reasonable but whether the amount charged by NSI was unreasonable.1
To recover, NSI need only prove that its charges for medically necessary treatment are reasonable. Once NSI makes a prima facie showing, the burden shifts to STATE FARM to prove that the charges were unreasonable.
NSI filed the affidavit of its owner, Traci Postell, in support of its claims. She indicated that the MRI charge of $1,695.00 was their usual and customary charge for such service and was a reasonable charge for this community. She also confirmed the amount paid and the balance owed. Accordingly, NSI met its burden and presented a prima facie case for reimbursement at the time of the summary judgment hearing.2 More importantly, the burden then shifted to STATE FARM to prove that NSI’s charges were unreasonable.
STATE FARM relies on the affidavit of its expert, Mr. Spell, in opposition to the Motion for Summary Judgment. He opined that “the charge (for this MRI) is unreasonable for the state and the community where the service was rendered.” He also opined that the amount paid by STATE FARM based on 200% Medicare Part B was reasonable.3
NSI concedes that Spell stated in his affidavit that NSI’s charges were unreasonable and, if properly considered, Spell’s affidavit would be sufficient to raise an issue of fact preventing Summary Final Judgment. But NSI argues that the trial court properly excluded Spell’s affidavit. Since Spell’s affidavit is the only evidence indicating that NSI’s charges were unreasonable, if the affidavit is properly stricken, the Summary Judgment was properly granted. Although, the standard of review for a Summary Judgment is de novo, the standard of review on a decision to exclude affidavits, testimony or evidence is “abuse of discretion”. Kellner v. David, 140 So. 3d 1042 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D1147b]. The admission of evidence is generally a matter within the sound discretion of the trial court. O’Brien v. O’Brien, 899 So.2d 1133 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D430a]; LaMarr v. Lang 796 So.2d 1208 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D2409a]. Unless an abuse of that discretion can be shown, the trial courts rulings will not be overturned. Lumbermens Mutual Casualty Co. v. Poling, 823 So.2d 805 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1345a]. So the issue is whether the trial court abused its discretion by excluding Spell’s affidavit.
The trial court’s decision in this regard is conclusive unless it is shown that the trial court applied erroneous legal principles in arriving at its decision and, on appeal, is entitled to great weight. Foster v. Thornton, 125 Fla. 699, 170 So. 459 (Fla. 1936); Davis v. State, 44 Fla. 32, 32 So. 822 (1902). An expert witness is one with special knowledge or skill in the subject upon which he is called to testify. Trial judges are accorded wide latitude, subject to the exercise of sound judicial discretion, in determining whether a so-called expert may testify. State Road Department v. Outlaw, 148 So.2d 741 (Fla. 1963). It is incumbent upon a party who alleges error because of the refusal of the trial court to permit an alleged expert witness to testify to show that there has been an abuse of sound judicial discretion. State Farm has failed to sustain this burden.
The trial judge excluded Spell’s Affidavit finding that his opinions “are not based upon personal knowledge and the information Spell relied upon cannot be authenticated and is, therefore, inadmissible hearsay.” The trial judge arrived at this conclusion after carefully considering the affidavit of the witness and the witness’s extensive deposition testimony. Spell is an actuary and admittedly had no personal knowledge of the medical charges for services in this community. Moreover, he made no attempt to personally ascertain whether NSI’s charges were reasonable for this community. He simply reviewed the national databases on medical charges and reimbursement rates charged throughout the country and expressed his opinions based solely on those databases. Spell did not and could not comment on the accuracy or reliability of this information. Nor could he opine on whether other similar providers in the community charged similar prices. In short, Spell’s opinions simply parroted figures from databases that Spell didn’t compile, using data that Spell didn’t collect, and methods that Spell couldn’t describe. More importantly, Spell could not attest to the truthfulness or reliability of the data used to form his opinions.
For the reasons expressed, we find that the trial court did not abuse it’s discretion in excluding Spell’s affidavit. The court has considered and rejects STATE FARM’s other arguments. Accordingly, the Summary Judgment is hereby affirmed.
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1NSI claims that STATE FARM improperly paid all charges based on 200% of the Medicare Part B reimbursement schedule and, in support of this contention, filed the deposition of Mitchell International, the developer of Decision Point software used by STATE FARM to adjust PIP and MP claims. NSI is correct that this testimony unquestionably demonstrates that STATE FARM chose to reimburse all PIP and MP claims at 200% of Medicare Part B in 2008-2013.
NSI also relies on the deposition of corporate representative for STATE FARM. In that deposition, Mr. Merrigan testified that STATE FARM applied a reimbursement rate of 200% of Medicare Part B to all of NSI’s charges, believing such amounts were reasonable for the services performed. These reductions to NSI’s charges were auto processed and automatically paid without any individuals determining the actual reimbursement rate. More importantly, the NSI charges were not determined to be unreasonable by STATE FARM at any time or by any process. STATE FARM simply chose to blindly substitute its reimbursement rate based on 200% of Medicare Part B for the provider’s actual bill.
However, this evidence is not directly relevant to the issues on appeal. The issue on appeal is whether NSI’s charges are unreasonable. The issue is not whether STATE FARM’s reimbursement rate is reasonable. If NSI’s charges are not unreasonable, State Farm was obligated to pay them.
2Similar prima facie showings were made in each of the other cases establishing that the NSI’s charges were reasonable. Similarly, the burden then shifted to State Farm in each of the other cases to establish that such charges were unreasonable.
3Much of Spell’s Affidavit analyzes why reimbursement paid at 200% Medicare Part B would be reasonable. But, for the reasons articulated earlier in this opinion, this was not the issue before the trial court or this court. Spell does not specifically opine why NSI’s charge was “unreasonable”. Spell only concludes that it was.
__________________ORDER DENYING APPELLANT’S MOTIONFOR REHEARING OF THE COURT’SSEPTEMBER 11, 2014 OPINION
(PERKINS/PARSONS, Judges.) THIS CAUSE came before the Court on the Appellant’s Motion for Rehearing of the Court’s September 11, 2014 Opinion, and the Court having reviewed the file, and being fully advised in the premises, finds:
1. Appellant contends that the Court overlooked or misapprehended uncontradicted evidence that NSI routinely accepted far less from other vendors than they charged State Farm in this case. Appellant seeks reversal of the Trial Court’s Order.
2. Appellee made a prima facie showing to the Trial Court that NSI’s charges were reasonable. The burden then shifted to State Farm to show that such charges were unreasonable. State Farm failed to discharge that burden by showing that the charges in question were unreasonable.
3. While evidence of NSI’s charges to other vendors for the same services may be relevant along with other evidence in determining whether the specific charges in question were unreasonable, that information alone, even if uncontested, is not enough to prove that the charges in question were unreasonable. Accordingly, the Appellant’s Motion for Rehearing of the Court’s September 11, 2014 Opinion is hereby denied.
