23 Fla. L. Weekly Supp. 1077b
Online Reference: FLWSUPP 2310NAPOInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges is appropriate issue to be determined by summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on reasonableness issue where affidavit lacks evidence of sufficient facts or data, reliable principles and methods, or scientific knowledge and is akin to pure opinion testimony
COMPREHENSIVE CHIROPRACTIC CENTER a/a/o, Islande Napoleon, a/a/o Shedlande Lahens, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case Nos. COCE 14-010819 and COCE 14-010820, Division 54. March 2, 2016. Stephen J. Zaccor, Judge. Counsel: Emilio Stillo and Andrea Jakob, for Plaintiff. Michael Walsh, for Defendant.
ORDER ON PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT
This cause came before the court on February 25, 2016 on Plaintiff’s Motion for Summary Judgment. This is a breach of contract case for underpaid PIP benefits and involves Chiropractic services rendered by Comprehensive Chiropractic Services (hereinafter the Plaintiff). State Farm Mutual Automobile Insurance (hereinafter the Defendant) contends 200% of the Medicare part B schedule is representative of a reasonable charge for said services and therefore did not pay 80% of the Plaintiff’s charges. The Parties agree the services rendered were related to an automobile accident and medically necessary.
After reviewing the pleadings, affidavits, and depositions, including those of Jonathan Maitland, Bradley Simon D.C., the evidence, the rest of the record, and after hearing argument of counsel for the parties, the court finds no issue of material fact as to the reasonableness of the charge, and hereby grants Summary Judgment in favor of the Plaintiff.
ANALYSIS AND FINDINGS OF FACT
Summary judgment is appropriate only when “there is no genuine issue as to any material fact. Mack v. Broward Cnty., 900 So. 2d 718, 719 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1078a]. Once the moving party carries its burden that there is no genuine issue of material fact, the burden shifts to the nonmoving party. Id.
If the movant sustains his initial burden, the opponent has the burden to come forward with counter-evidence revealing a factual issue. The movant need not exclude every possible inference that the opposing party might have other evidence available to prove his case. Should the opponent not come forward with any affidavit or other proof in opposition to a motion for summary judgment, the movant need only establish a prima facie case, whereupon the court may enter such judgment.
Page v. Staley, 226 So. 2d 129, 131 (Fla. 4th DCA 1969).
The Plaintiff moves for Summary Judgment based on an affidavit of Jonathan Maitland, their corporate representative, who maintains the Plaintiff’s charges were reasonable. Mr. Maitland is the director of billing for the Plaintiff and several other similar facilities and has personal acknowledge of the amounts various insurance companies have reimbursed for the services at issue.
An affidavit in support of summary judgment must satisfy three requirements: (1) personal knowledge; (2) admissible facts; and (3) competency of the affiant to testify. Montejo Investments v. Green Companies, Inc. of Florida, 471 So.2d 158(Fla. 3rd DCA 1985); Fla. R. Civ. Pro. 1.510(e). Mr. Maitland’s affidavit is based upon personal knowledge. He’s been involved in medical billing and is personally familiar with the Plaintiff’s charges, practices, and reimbursements. His affidavit is based upon admissible evidence, specifically what the Plaintiff’s charges and reimbursements are. Finally, Mr. Maitland is competent to testify to that with which he has personal knowledge of, and years of experience with.
The Plaintiff has met its burden in this case. Mr. Maitland’s affidavit establishes a prima facie case that their charges are within the reasonable range of charges for the chiropractic services performed in this case.
A plaintiff’s prima facie showing of the reasonableness of its charges can be established by merely presenting the medical bill produced for the service at issue, along with testimony that the patient received the treatment in question. See A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; Iowa Mutual Nat’l Insurance Co. v. Worthy, 447 So.2d 998, 1000 n.5 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409, 409-10 (Fla. 1st DCA 1979); State Farm Mutual Auto. Insurance Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (11th Cir. Court. 2004) (appellate capacity). As noted by the Fourth DCA, “[A] medical bill constitutes the provider’s opinion of a reasonable charge for the services.” A.J., 677 So.2d at 937. In the alternative, a Plaintiff may also present lay testimony from a fact witness with firsthand knowledge as to why the charge for the service was set at the rate at which it was billed. Multicare, 12 Fla. L. Weekly Supp. at 33a. A Plaintiff may, but is not required to, produce an expert witness to establish the reasonableness of its charges. Sea World of Florida, Inc. v. Ace American Insurance. Co., Inc., 28 So.3d 158, 160 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So.2d 1122, 1123 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]; A.J., 677 So.2d at 937-38; East West Karate Assn., Inc. v. Riquelme, 638 So.2d 605, 605 (Fla. 4th DCA 1994); Multicare, 12 Fla. L. Weekly Supp. at 33a; Kompothrecas v. Progressive Consumers Insurance. Co., 8 Fla. L. Weekly Supp. 505a, 506 (Sarasota Cty. Court. 2001).
Coastal Radiology, LLC (a/a/o Jenesis Ramirez) v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 167a (Fla. Broward Cty. Ct. 2014). Mr. Maitland’s affidavit and associated, Health Insurance Claim Forms satisfy the Plaintiff’s burden. Additionally, his affidavit refers to prior reimbursements made by various PIP insurers for the CPT codes at issue. The Plaintiff having met its burden, it now shifts the Defendant to show the existence of an issue as to a material fact.
In opposition to the Plaintiff’s motion the Defendant argues the reasonableness of a charge is a question for the jury. The Defense has not provided, nor is this court aware of, any controlling authority to support their claim that reasonableness of a charge is always a jury question. Multiple county courts in Broward have granted summary judgment as to reasonableness of a charge and have not been reversed. In United Automobile Insurance Company v. Hallandale Open MRI, LLC, a/a/o Antonette Williams 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. App. Court 2013) Judge DeLuca granted the plaintiff’s motion for summary judgment as to the reasonableness of the charge of a lumbar MRI. The Circuit Court acting in its appellate capacity affirmed the lower court and the Fourth DCA declined certiorari. 39 Fla. L. Weekly D1883c (2014). In doing so, the Fourth District opined “[t]he circuit court’s affirmance could have been based on the trial court’s outright rejection of the affidavit offered by petitioner.” Id. It follows then, by rejecting the petitoner’s/defendant’s evidence, the trial court found the respondent’s/plaintiff’s evidence established a prima facie case of reasonableness and summary judgment was appropriate. Clearly, the District Court found no error in the trial court granting summary judgment as to reasonableness.
The 17th Judicial Circuit, acting in its appellate capacity, recently affirmed the trial court’s granting of summary judgment as to the reasonableness of the charge. State Farm Mutual Auto v. Palms MRI Diagnostic Imaging Centers, Inc., a/a/o Deanna Sossin, CACE14-009562 May 18th, 2015 [23 Fla. L. Weekly Supp. 9b]. Therefore, the controlling authority in this circuit is that reasonableness is an appropriate issue to be determined by summary judgment.
In further opposition to the Plaintiff’s motion, the Defendant relies on an affidavit from Dr. Bradley Simon. In his affidavit, Dr. Simon opines that “some of the fees were excessive”. As Dr. Simon is providing his expert his opinion on the issue of reasonableness it must withstand the scrutiny of Section 90.702, Florida Statutes (2013), which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). This Court finds Dr. Simon, a licensed and practicing Chiropractor by trade and owner of a chiropractic facility, is qualified by knowledge, experience, and education in the fields of chiropractic care and operating a chiropractic facility. Whether he can give expert testimony regarding the reasonableness of the charges turns on whether sub-sections (1), (2), and (3) are satisfied. More specifically, “the subject of an expert’s testimony must be ‘scientific knowledge.’ ” Perez v. Bell South Telecommunications, Inc., 138 So.3d 492, 498 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b], quoting Daubert at 590. “In order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method.” Id. In other words, Dr. Dauer’s testimony must be genuinely scientific rather than “unscientific speculation offered by a genuine scientist.” Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir. 2014) [25 Fla. L. Weekly Fed. C416a].
This Court finds the Defendant has not established Dr. Simon’s testimony satisfies Section 90.702 Florida Statutes (2014) or Daubert and its progeny. Dr. Simon’s affidavit is lacking evidence of sufficient facts or data, reliable principles and methods, or “scientific knowledge.” Dr. Simon’s affidavit provides for anecdotal evidence based on his experience, to wit: what he charges, and what he has been reimbursed for identical services at his facility. He also relies on anecdotal evidence gleaned from performing Independent Medical Examinations and Peer Reviews. Nowhere in his affidavit is evidence of reliable principles and methods or reliable application to the facts of this case. This is not the sort of testimony which qualifies under Section 90.702 Florida Statutes (2013). To the contrary, this is more akin to the “pure opinion” testimony which has been rejected by the legislature. Perez at 497; Giaimo v. Florida Autosport, Inc., 154 So.3d 385 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D2484a](The Legislature’s adoption of the Daubert standard reflected its intent to prohibit “pure opinion” testimony.). Therefore, Dr. Simon’s testimony cannot be considered and does not create the existence of a material fact in issue as to the reasonableness of the charges.
Accordingly, the Plaintiff’s Motion for Summary Judgment as to the reasonableness of the charge is hereby granted.
ACCORDINGLY, The Plaintiff’s Motion for Summary Judgment as to Reasonableness of the charge is GRANTED.
