23 Fla. L. Weekly Supp. 63a
Online Reference: FLWSUPP 2301APPLInsurance — 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 charge for orthopedic consultation where affidavit fails to refute provider’s evidence of its usual and customary charges accepted during year at issue, reimbursement levels in community, and routine approval of same charge as reasonable by defendant insurer and five other insurers
APPLE MEDICAL CENTER, LLC, A FLORIDA CORP., A/A/O AMADOR, YANELSY, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 11-25019 SP 23 (4). May 1, 2015. Jason E. Dimitris, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Angelica Torrents Roque, for Defendant.
ORDER GRANTING SUMMARY FINAL JUDGEMENT
THIS CAUSE came before the Court on February 11, 2015, for hearing of the Plaintiff’s Motion for Partial Summary Judgment as to Reasonableness of Charges and Pricing of Services, and the Court having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument of counsel; having made a thorough review of the summary judgment evidence and having been fully advised in the premises, the Court finds as follows:BACKGROUND
1. The above-styled cause of action arises out of a claim for unpaid personal injury protection benefits filed by the Plaintiff on November 23, 2011.
2. Defendant’s automobile insurance policy in this case provides:
STATE FARM will pay 80% of all reasonable expenses incurred for medically necessary medical . . . services.
To determine whether a charge is reasonable [STATE FARM] may consider usual and customary charges and payments accepted by the provider, 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.
3. By Order dated November 28, 2012, this Court ruled that the above policy language controls over the permissive statutory language found at Fla. Stat. Sec. 627.736(5)(a)(2)(f).
4. Plaintiff filed its Motion for Partial Summary Judgment regarding whether medical treatment rendered by the Plaintiff to the insured, Yanelsy Amador, on August 22, 2008 was reasonable, necessary and related to the insured’s April 14, 2008 automobile accident.
5. Pursuant to this Court’s prior ruling on October 1, 2013, partial summary judgment was granted as to (1) the occurrence of the April 14, 2008 automobile accident involving Yanelsy Amador; (2) the relatedness of the injuries sustained by Yanelsy Amador to that automobile accident; and (3) the medical necessity of the treatment provided by the Plaintiff on August 22, 2008 for the benefit of Yanelsy Amador.
6. Accordingly, the only remaining issue is the reasonableness of Plaintiff’s charge and pricing in the amount of $600.00 for the August 22, 2008 Orthopedic Consultation.
7. In support of its motion, the Plaintiff provided the Affidavit of Dr. Ronald J. Trapana, an Orthopedic Surgeon, who concluded that the Plaintiff’s charge for the services rendered is reasonable and customary, and similar to the charge of other Medical Doctors in Miami-Dade County, Florida for similar services.
8. On or about September 15, 2014, Plaintiff filed the Affidavit of Maribel Ferras, Plaintiff’s office administrator. Mr. Ferras’ affidavit revealed that a number of PIP insurers (including State Farm) had routinely approved Plaintiff’s identical charge for identical Orthopedic Consultations performed throughout 2008. Documented instances of those approvals are as follows –
· State Farm had approved Plaintiff’s charge of $600.00 for an identical 99244 Orthopedic Consultation provided on March 19, 2008, issuing payment on or about April 17, 2008.
· State Farm had approved Plaintiff’s charge of $600.00 for an identical 99244 Orthopedic Consultation provided on February 29, 2008, issuing payment on or about March 25, 2008.
· State Farm had approved Plaintiff’s charge of $600.00 for an identical 99244 Orthopedic Consultation provided in another claim, issuing payment on or about January 15, 2009.
· GEICO had approved Plaintiff’s charge of $600.00 for an identical 99244 Orthopedic Consultation provided on July 31, 2008, issuing payment on or about September 19, 2008.
· United Automobile Insurance Co. had approved Plaintiff’s charge of $600.00 for an identical 99244 Orthopedic Consultation provided on December 18, 2008, issuing payment on or about March 25, 2009.
· United Automobile Insurance Co. had approved Plaintiff’s charge of $600.00 for an identical 99244 Orthopedic Consultation provided on October 20, 2008, issuing payment on or about December 31, 2008.
· Security National Insurance Co. had approved Plaintiff’s charge of $600.00 for an identical 99244 Orthopedic Consultation provided on August 25, 2008, issuing payment on or about October 16, 2008.
· Peachtree Casualty Insurance Co. had approved Plaintiff’s charge of $600.00 for an identical 99244 Orthopedic Consultation provided on November 17, 2008, issuing payment on or about March 30, 2010.
· Allstate Property and Casualty Insurance Co. had approved Plaintiff’s charge of $600.00 for an identical 99244 Orthopedic Consultation provided on February 18, 2008, issuing payment on or about March 25, 2008.
· Allstate Property and Casualty Insurance Co. had approved Plaintiff’s charge of $600.00 for an identical 99244 Orthopedic Consultation provided on October 22, 2008, issuing payment on or about December 1, 2008.
· Allstate Property and Casualty Insurance Co. had approved Plaintiff’s charge of $600.00 for an identical 99244 Orthopedic Consultation provided on December 16, 2008, issuing payment on or about January 20, 2009.
6. On or about February 5, 2015, Defendant filed the Affidavit of Darrell D. Spell, FSA, a Consulting Actuary, who offered the opinion that “a reasonable range for the payment amount and charge amount for services would be in the range between 140% to 200% of the Medicare Physicians Fee Schedule” and that the fee charged by the Plaintiff for providing the 99244 Orthopedic Consultation in this case was not reasonable, as it exceeded the range of 140% to 200% of the Medicare Physicians Fee Schedule.STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510; Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a].
The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605, 606 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1919b]. In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits and pleadings on file. See Mack v. Commercial Industrial Park, Inc., 541 So.2d 800 (Fla. 4th DCA 1989). Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue. It is not enough for the party opposing summary judgment merely to assert that an issue exists. Landers v. Milton, 370 So.2d 368 (Fla. 1979).
“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].CONCLUSIONS OF LAW
The issue for the Court is whether the pleadings on file and record evidence establish that 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.
The Court finds the Plaintiff’s affidavits of Dr. Trapana and Maribel Ferras satisfy Plaintiff’s burden to prove its charge of $600 for the CPT Code 99244 Orthopedic Consultation at issue is reasonable.
In opposition, Defendant relies upon the affidavit of Darrell D. Spell, FSA, a Consulting Actuary, filed on February 5, 2015, who offered the opinion that “a reasonable range for the payment amount and charge amount for services would be in the range between 140% to 200% of the Medicare Physicians Fee Schedule” and that the fee charged by the Plaintiff for providing the 99244 Orthopedic Consultation in this case was not reasonable, as it exceeded the range of 140% to 200% of the Medicare Physicians Fee Schedule. Plaintiff argues that the Defendant failed to establish a disputed issue of material fact through Mr. Spell’s affidavit. The Court agrees with the Plaintiff.
Pursuant to Fla. Stat. Sec. 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, Defendant has failed to present competent, admissible evidence to rebut Plaintiff’s prima facie showing that its charge was, in fact, reasonable.
Plaintiff presented detailed, specific, unrefuted evidence of its usual and customary charges and payments accepted during the year 2008, the same year in which Plaintiff performed the 99244 Orthopedic Consultation at issue in this case. In addition, Plaintiff presented detailed, specific, unrefuted evidence of reimbursement levels in the community and other information relevant to the reasonableness of the reimbursement for the service, as evidenced by twelve documented instances of six separate PIP insurers (including State Farm, the Defendant in this case) having approved and allowed Plaintiff’s charge in the amount of $600.00 for a 99244 Orthopedic Consultation.
More specifically, in addition to the Defendant, GEICO, United Automobile Insurance Company, Security National Insurance Company, Peachtree Casualty Insurance Company and Allstate Property and Casualty Insurance Company have each approved and allowed Plaintiff’s charge in the amount of $600.00 for a 99244 Orthopedic Consultation, all within the same time frame as the August 22, 2008 Orthopedic Examination that Plaintiff provided in this case. The twelve Orthopedic Examinations identified in the attachments to the Affidavit of Maribel Ferras were all performed in 2008, the same year in which Plaintiff performed the August 22, 2008 Orthopedic Examination of Yanelsy Amador, with four of those Orthopedic Examinations having been performed within 60 days of the Yanelsy Amador examination.
Defendant presented absolutely no evidence whatsoever to dispute, contradict or otherwise rebut the clear and compelling evidence of the reasonableness of Plaintiff’s charge, as shown by the fact that State Farm and five other insurers had routinely approved and allowed that charge as a reasonable charge, the very same charge that State Farm now suggests to be unreasonable in this case.
This court cannot conclude that since certain payors pay less than the charged amount in this case then there is a question of fact as to whether the charged amount of $600 is unreasonable, particularly in light of the other summary judgment evidence presented. It is therefore
ORDERED that Plaintiff’s motion for summary judgment is GRANTED, and a final summary judgment is entered in favor of the Plaintiff.
