23 Fla. L. Weekly Supp. 174b
Online Reference: FLWSUPP 2302TROCInsurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered treatment — It is outside purview of court to make determination that provider did not comply with Health Care Clinic Act, including medical or clinical director compliance, absent a finding from the Agency for Health Care Administration that the provider had been in violation of the statute at the time the services at issue were rendered — Affirmative defense of noncompliance remains issue for trier of fact — Defendant’s motion for summary judgment denied
BLUE MEDICAL NETWORK, INC., (A/A/O TROCHE, JIMMY), Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-14728 SP 05. June 16, 2015. Honorable Lourdes Simon, Judge. Counsel: Kelly Arias and Anne Marie Giri, Arias Law Group, P.A., Hollywood, for Plaintiff. Maury Udell and Jennifer Cotungo, Beighley, Myrick & Udell, P.A., Miami, for Defendant.
[Rehearing denied June 30, 2015.]ORDER DENYING DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENT(on the issue of Medical Director)
THIS CAUSE, having come before this Honorable Court upon Defendant’s Motion for Final Summary Judgment (on the issue of Medical Director) and the Court being otherwise fully advised in the premises, it is hereupon,
ORDERED AND ADJUDGED as follows;
Defendant’s Motion is hereby DENIED, as more specifically set forth below.
PRELIMINARY STATEMENT
On or about January 31, 2011, Jimmy Troche was injured in an automobile accident. At the time of the accident, Jimmy Troche had PIP coverage under a policy of insurance issued by the Defendant, which inured to Jimmy Troche’s benefit. Jimmy Troche received medical treatment for his injuries at Blue Medical Network, Inc. Defendant thereafter declined to pay the bills submitted by Plaintiff alleging a breach of contract for Mr. Troche allegedly failing to appear at an Independent Medical Examination. The Defendant denied payment of Plaintiff’s bills stating in each of their five Explanation of Benefits that they denied services because “No Fault benefits under this policy has been denied for breach of contract.” At no point in time did the Defendant’s explanation of benefits or initial answer and affirmative defense address the issue of a potential violation of the medical director act (Fla. Stat. § 400.9935). Subsequently, on July 18, 2012 the Plaintiff filed a lawsuit against Defendant for failure to pay PIP benefits due and owing for services rendered.
On July 28, 2014, the Defendant filed its initial Answer, Affirmative Defenses for Jury Trial alleging two affirmative defenses: 1.) Reasonable, Related and Necessity, and 2) that Plaintiff sued the wrong corporate entity. Then after order of the court, on October 10, 2014 the Plaintiff filed its Amended Complaint to name the correct corporate entity properly. In response, on or about October 22, 2014, the Defendant filed its Answer, Affirmative Defenses and Demand for Jury Trial including its prior affirmative defense of Reasonable, Relatedness and Necessity and adding: 1) that Plaintiff had no standing; 2) that Plaintiff was operating in violation of the Medical Director statute; and 3) IME no show on part of the patient.
On June 1, 2015, Defendant presented its Motion for Final Summary Judgment alleging that Plaintiff’s Medical Director, Sonia Tolgyesi, M.D., allegedly failed to comply with Fla. Stat. §400.9935. Plaintiff’s argued in opposition to Defendant’s Motion for Summary Judgement that Defendant ultimately may not prevail on a motion for summary judgment premised upon Fla. Stat. §400.9935 in this PIP breach of contract action for the following reasons: 1) Defendant has no private right of action or private right of enforcement in Chapter 400, The Health Care Clinic Act (“the Act”); 2) compliance with the Act is determined exclusively by the Florida Agency for Health Care Administration; 3) enforcement of the Act rests with the Florida Agency for Health Care Administration and enforcement/determination of a violation of same in a Florida County Court would result in a violation of due process; 4) Defendant is not a member of the class intended to be benefitted under the Act; 5) the Florida Agency for Health Care Administration has found Plaintiff in compliance with the Act; 6) neither Defendant nor this Court has the authority to challenge the Florida Agency for Health Care Administration’s regulatory authority under the Act; 7) and the granting of Defendant’s motion for summary judgment would violate the separation of powers clause found in the Florida Constitution.
Defendant presented two deposition transcripts of the medical director for Blue Medical Network, Inc. that were taken in two separate, unrelated cases. The first occurred on March 29, 2012 in the matter of Blue Medical Network, Inc. a/a/o Estrella Medina v. Progressive American Insurance Company, Case No. 11-462-CC-25 (4), and the second occurred on January 28, 2013 in the matter of Blue Medical Network, Inc. a/a/o Jorge Martinez v. Progressive Express Insurance Company, Case No. 11-1143-CC-26 (3). Plaintiff’s counsel had taken a deposition of the Medical Director on May 21, 2015 in the instant case, but this court did not take it into consideration in ruling on Defendant’s Motion for Summary Judgment in light of Defendant’s objection to timely filing.
Defendant during the hearing on June 1, 2015 relied upon three cases in the presentation of its argument. The first case is State Farm Fire & Casualty Company v. Silver Star Health and Rehab, 739 F.3d 579 (M.D. Fla. 2013). The second case is Active Spine Centers, LLC v. State Farm Fire & Casualty Co., 911 So. 2d 241 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2286a]. The third case is State Farm Mutual Automobile Insurance Company, et al v. Advantage Medical Diagnostic, Inc., et al, 15 Fla. L. Weekly Supp. 1094a (Fla. 13th Cir. Ct. April 17, 2007). The Defendant’s legal argument does not prevail as, unlike the case law upon which Defendant relies, the Plaintiff had a medical director at the time the services were rendered and statutory compliance was contested by the parties. As a result, this court would be forced to make the determination as to whether Sonia Tolgyesi, M.D. strictly complied with Fla. Stat. 400.9935 without jurisdiction to do so. It is not within the purview of this court to make this decision absent a prior official finding from AHCA that Blue Medical Network, Inc. had violated Fla. Stat. §400.9935.
LEGAL STANDARD
A party is entitled to summary judgment in their favor if the “pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). The moving party bears the burden of demonstrating the non-existence of any genuine issue of material fact. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]; Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); Calarese v. Weissfisch, 87 So. 3d 1225, 1227 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D1238c]. However, once the moving party has met its burden, the burden then shifts to the party opposing the motion to come forward with counter-evidence sufficient to reveal a genuine and material disputed issue of fact. Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a].
FINDINGS OF LAW AND RULING
The Defendant asked this Court to make a determination as to whether the Plaintiff strictly complied with the Health Care Clinic Act; specifically Chapter 400. The Health Care Clinic Act is clear in its objective of consumer protection and in the vesting of enforcement powers in the Agency for Health Care Administration (AHCA) for compliance, specifically medical or clinical director compliance under Fla. Stat. §400.9935. Fla. Stat. §400.990, verbalizes the legislative intent to regulate health care clinics for the purpose of strengthening rules to prevent significant cost and harm to consumers. Read plainly, Chapter 400, specifically Fla. Stat. §400.9935, fails to express any private right of action or private right of enforcement.
The Defendant relied upon the following: 1.) State Farm Fire & Casualty Company v. Silver Star Health and Rehab, 739 F.3d 579 (M.D. Fla. 2013); 2.) Active Spine Centers, LLC v. State Farm Fire & Casualty Co., 911 So. 2d 241 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2286a]; and 3.) State Farm Mutual Automobile Insurance Company, et al. v. Advantage Medical Diagnostic, Inc., et al., 15 Fla. L. Weekly Supp. 1094a (Fla. 13th Cir. Ct. April 17, 2007). However, each of these cases is distinguishable from the instant case. In Silver Star, there was no medical director at all. In Active Spine, the chiropractic clinic lost its exemption when its owner died and the clinic was not entitled to payment of PIP benefits from the automobile insurer for unlawful treatment of accident victims between owner’s death and registration. Active Spine at 244. In Advantage Medical it was uncontested that the medical director failed to perform his duties. In the instant case, the Plaintiff had a medical director, Sonia Tolgyesi, M.D. and the parties contest whether she performed her duties. Additionally, Defendant has provided no factual evidence that AHCA had made a determination that Blue Medical Network, Inc. had any administrative violations pursuant to Fla. Stat. 400 Part X.
Given the foregoing, this Court holds that it is outside the purview of the court to make the determination that there was no compliance with Fla. Stat. 400.9935 (2011) absent a finding from AHCA that Blue Medical Network had been in violation of said statute at the time the services were rendered to the patient, Jimmy Troche. Defendant’s affirmative defense remains an issue for the trier of fact.
Therefore, Defendant’s Motion for Final Summary Judgment is DENIED.
