23 Fla. L. Weekly Supp. 1061a

Online Reference: FLWSUPP 2310MEDIInsurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered services — Insurer had no obligation to pay clinic whose medical director was not performing her statutorily mandated duties — Court rejects plaintiff’s position that only the Agency for Health Care Administration can find clinic in violation of statute

BLUE MEDICAL NETWORK, INC. A/A/O ESTRELLA MEDINA, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 11-462-CC-25 (4). January 26, 2016. Carlos Guzman, Judge. Counsel: Kelly Arias, for Plaintiff. Maury L. Udell, Beighley, Myrick & Udell, Miami, for Defendant.

ORDER GRANTING DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENTAND ENTRY OF FINAL JUDGMENT

THIS CAUSE came upon to be heard on October 14, 2015, and the Court having reviewed the records and all authorities, heard argument of counsel, and being otherwise fully advised in the premises, it is hereby

ORDERED AND ADJUDGED as follows:FACTUAL BACKGROUND

1. Plaintiff, Blue Medical Network, Inc. (a/a/o Estrella Medina) filed this lawsuit against Defendant, Progressive American Insurance Company for unpaid personal injury protection (“PIP”) benefits arising out of its billing for treatment to claimant Estrella Medina for a motor vehicle accident that occurred on June 4, 2010.

2. Plaintiff was a health care clinic required to be licensed and employed Dr. Sonia Tolgyesi as medical director, as defined by Fla. Stat. § 400.9935 at all relevant times.

3. Defendant has alleged Dr. Sonia Tolgyesi did not fulfill her duties and responsibilities as the Medical Director of Blue Medical as defined and required by Fla. Stat. §400.9935

4. Defendant’s asserted an affirmative defense that Plaintiff was not in compliance with Fla. Stat. §400.9935 regarding Plaintiff’s medical director and that the services rendered were unlawful, and therefore Defendant had no obligation to pay under the policy of insurance. For the reasons stated below, the Court agrees.

FINDINGS

The determination that Blue Medical was in violation of Fla. Stat. §400.9935 does not rest solely with Florida’s Agency for Health Care Administration (“AHCA”) and a finding by AHCA is not required for the Court to determine whether a violation has been committed.

Fla. Stat. §400.9935(1) requires each clinic to appoint a medical director or clinic director who shall agree in writing to accept legal responsibility for certain enumerated activities on behalf of the clinic. See Id. Consequently, “[alI] charges or reimbursement claims made by or on behalf of a clinic that is required to be licensed under this part, but that is not so licensed, or that is otherwise operating in violation of this part, are unlawful charges, and therefore are non-compensable and unenforceable.” Fla. Stat. §400.9935(3) (emphasis added). Nowhere in the text of Fla. Stat. §400.9935 is there a requirement that AHCA is the sole authority on whether a violation has occurred. In fact, AHCA is not even mentioned in Fla. Stat. §400.990 et seq. Therefore, the Court is the relevant forum to determine the defense pled. To hold otherwise would render the statute meaningless.

In State Farm Fire & Casualty Company v. Silver Star Health and Rehab, 739 F.3d 579 (11th Cir. 2013) [24 Fla. L. Weekly Fed. C834a], the Eleventh Circuit affirmed judgment in favor of an insurer and held judicial review of lawfulness Fla. Stat. §400.9935 was contained in the plain language of the statute. Id. The Court opined “because courts are traditional forums for determining the lawfulness, compensability, and enforceability of claims, it would make no sense to read into a statute a provision that courts lack the authority to decide the crucial question on which the lawfulness, compensability, and enforceability of a claim depends, which in this case is whether the exemption [the clinic] asserts applied, excusing its failure to obtain a license.” Silver Star at 583.

Similarly, the Third District Court of Appeals affirmed summary judgment in favor of an insurer for violations of clinic registration in Active Spine Centers, LLC v. State Farm Fire & Casualty Co., 911 So. 2d 241 (Fla. 3d DCA 2004) [30 Fla. L. Weekly D2286a]. Further, the Ninth Judicial Circuit, sitting in its appellate capacity, held that an insurer could assert the medical director defense and reversed the trial court’s entry of summary judgment in favor the clinic in Geico General Insurance Company v. United Health & Rehab Associates of Florida, Inc., 22 Fla. L. Weekly Supp. 39a (Fla. 9th Judicial Circuit Appellate June 18, 2013). In its opinion, the Court rejected the clinic’s argument that violation of §400.9935 does not provide a basis for the insurer to refuse payment for otherwise proper medical treatment. Id.

In a May 29, 2015 decision by Miami-Dade County Judge Spencer Multack involving this same issue, Judge Multack concluded, “it would fly in the face of common sense that a Court hearing a matter involving PIP benefits would be divested of the jurisdiction to make the determination whether those PIP benefits were lawful in accordance with the HCCA.” Judge Multack goes on to state “again, the statute makes no reference that the determination of lawfully rendered services is exclusive to the agency or that agency involvement is condition precedent to a Court’s determination of compliance. Clearly, the Legislature intended to prohibit clinics rendering unlawful treatment from being compensated for such.” See Order Granting Defendant’s Motion for Summary Judgment Pursuant to the Health Care Clinic Act (F.S. 400.9935) entered in the matter of Y.H. Imaging, Inc. a/a/o Cesar Alonso v. Progressive American Insurance Company, Case No. 12-21181-SP-23(06) [23 Fla. L. Weekly Supp. 563b].

Similarly, the Honorable K. Michael Moore, Chief United States District Judge for the Southern District of Florida, cited the Silver Star opinion in his Order GRANTING Defendant’s Motion for Final Summary Judgment finding the provider’s argument that an insurer could not predicate a cause of action upon alleged violation of the Health Care Clinic Act as incorrect. See Amended Order on State Farm’s Motion for Final Summary Judgment in the matter of State Farm Mutual Automobile Insurance Company and State Farm Fire & Casualty Company v. B&A Diagnostic, Inc. n/k/a Oasis Medical Center Corp., Estaban Genao, Alex Alonso, M.D., Ernesto Alvarez Velasco and Jose Angel Ortiz Maza, Case No. 14-cv-24387-KMM, United States District Court for the Southern District of Florida.¹

Further, the Honorable Cecelia Altonaga, United States District Judge for the Southern District of Florida, granted final judgment on behalf on an insurer with a medical director who failed to perform the statutorily required duties. There, the court cited Silver Star and found “by not having a medical director who exercised all required duties and responsibilities mandated by Florida law, [the clinic] failed to comply with the requirements for health care clinic licensure. As a result, the services purportedly provided by [the clinic] were unlawful and, therefore, all charges or reimbursement claims billed to [the insurer] by or on behalf of [the clinic] are noncompensable and unenforceable.” See Order entered June 24, 2015 (Document 68), in State Farm Mutual Automobile Insurance Company v. A&J Medical Center, Inc. Case No. 14-20066-CV-CMA, United States District Court for the Southern District of Florida.

Defendant relies upon two deposition transcripts of Dr. Tolgyesi wherein she states she was not reviewing the clinics bills, did not serve as the clinic records owner No valid summary judgment evidence was presented to the Court to contradict Dr. Tolgyesi’s clear and unambiguous deposition testimony.²

Though it is not a requirement, there is record evidence that AHCA would have found Blue Medical in violation had it been aware of Dr. Tolgyesi’s failure to perform her duties. By the time the deposition testimony of Dr. Tolgyesi was obtained, Blue Medical had ceased to operate as a clinic.

Defendant filed the “Affidavit of Roger Bell” in support of its motion. Roger Bell was the manager of AHCA’s Health Care Clinic (HCC) unit from its inception in October of 2005 through August 2012 when he retired. Therefore, he was the manager of the unit during the dates of service at issue. Mr. Bell reviewed the deposition transcripts of Dr. Tolgyesi and concluded she was not performing her duties as mandated by the statute.

Defendant conclusively demonstrated that there is no genuine issue of material facts and that it is in entitled to judgment as a matter of law on the medical director issue.

Summary judgment is properly granted where the moving party conclusively demonstrates that no genuine issues of material fact exist between the parties and that the moving party is entitled to judgment as a matter of law. Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966). In order to meet this burden, a movant must “overcome all reasonable inference which may be drawn in favor of the opposing party.” Star Lakes Estates Ass’n, Inc. v. Auberbach, 656 So. 2d 271, 274 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D1455a]. See also Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966) (moving party must demonstrate the absence of all reasonable inferences which may be drawn in favor of the moving party); Albelo v. Southern Bell, 682 So. 2d 1126, 1129 (“even where the facts are uncontroverted, the remedy of summary judgment is not available if different inferences can be reasonably drawn from the uncontroverted facts”). However, once the movant tenders competent evidence to support the motion, the party against whom the judgment is sought must present contrary evidence to reveal a genuine issue of material fact. It is not enough for the party opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1048a].

Through the deposition testimony of Dr. Tolgyesi and the affidavit of Roger Bell, Defendant has tendered competent evidence to support its motion for final summary judgment. Plaintiff offered no valid summary judgment evidence to contradict Defendant’s position. There are no reasonable inferences that can be drawn in favor of the Plaintiff based on the record before this Court. Dr. Tolgyesi testified she did not review the billings and was not the owner of the records.

CONCLUSION

Defendant has conclusively established that Dr. Tolgyesi was not performing her statutorily mandated duties. Fla. Stat. §400.9935(3) states that “all charges or reimbursement claims made by or on behalf of a clinic that is required to be licensed under this part, but that is not so licensed, or that is otherwise operating in violation of this part, are unlawful charges, and therefore are non-compensable and unenforceable.” It is well within the purview of this Court to find Plaintiff was in violation of Fla. Stat. §400.9935(3) contrary to Plaintiff’s assertions that only AHCA can make this determination. Plaintiff, on the other hand, has not cited a single case to support its position that only AHCA can find a clinic in violation of §400.9935.

Wherefore, for the foregoing reasons, the Court hereby orders and adjudges that:

1. Defendant’s Motion for Final Summary Judgment is GRANTED.

2. Plaintiff’s Cross-Motion for Summary Judgment is DENIED.

3. Final Judgment is entered in favor of Defendant. Plaintiff shall take nothing by this action and Defendant shall go henceforth without day.

4. The Court reserves jurisdiction to award attorney’s fees and taxable costs.

__________________

¹Judge Moore also found in State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company v. Medical Service Center of Florida, Inc., Medical Diagnostic Center of Florida, Inc., Lourdes Diaz and Edel Perez Diaz that §400.9935 permitted and insurer to recover damages from a clinic and rejected the clinic’s argument that the insurer could not recover from the clinic for statutory violations. See Order on Motions for Summary Judgment Entered May 8, 2015, in Case No. 14-CV-20625-KMM, United States District Court, Southern District of Florida.

²Plaintiff submitted a deposition transcript of Sonia Tolgyesi taken on May 21, 2015, in the matter of Blue Medical Network, Inc. a/a/o Servando Infante v. Progressive American Insurance Company, Case No. 11-460-CC-25. (Defendant filed a summary judgment on the same grounds in that case and filed the same evidence in support of its motion.) The Court finds, for the reasons stated below, that the deposition was taken solely for the purpose of avoiding summary judgment and directly contradicts the evidence before the Court. The Court further finds that there is no credible explanation for the earlier unequivocal testimony and later inconsistent testimony. Florida law is settled that a litigant, when confronted with an adverse motion for summary judgment may not contradict or disavow prior sworn testimony with new and starkly different sworn testimony, solely to avoid summary judgment. Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954); Ondo v. F. Gary Gieseke, P.A., 697 So. 2d 921 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1770a]; review denied, 707 So. 2d 1126 (Fla. 1998); Arnold v. Dollar General Corp., 632 So. 2d 1144 (Fla. 5th DCA 1994).

Additionally, it is well settled that where there is no credible explanation for discrepancies between earlier unequivocal testimony and later inconsistent testimony, that the later testimony will be stricken. Soler v. Secondary Holdings, Inc. 771 So. 2d 62 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D2505a]; see also Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981)(party to lawsuit will not be allowed to repudiate his or her prior deposition testimony by affidavit executed by that party or by another person, without a credible explanation given in the affidavit or in record itself); Cary v. Keene Corp., 472 So. 2d 851 (Fla. 1st DCA 1985)(stating that: “”[an] unsubstantiated assertion is not sufficient to overcome the effect of . . . prior testimony”).