23 Fla. L. Weekly Supp. 653b

Online Reference: FLWSUPP 2306PADIInsurance — Personal injury protection — Summary judgment — Reasonableness of charges — Medical provider met burden of establishing reasonableness of charges — Opposing affidavit of insurer’s expert is materially deficient where affidavit lacks information about reasonableness of charges and focuses on what reasonable reimbursement levels should be without explaining how that impacts reasonableness of charges — Expert’s opinion that nothing above 200% of Medicare rate would ever be reasonable is rejected where opinion renders ruling in Virtual Imaging meaningless — Provider’s motion for final summary judgment is granted

DR. MICHAEL SURDIS, JR. PA., d/b/a ALL BROWARD CHIROPRACTIC & PAIN REHABILITATION CENTERS (a/a/o Desiree Padilla), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 14-13734 (52). September 8, 2015. Giuseppina Miranda, Judge. Counsel: Steven M. Singer, Law Offices of Steven M. Singer, PA, Plantation, for Plaintiff. Kubicki Draper, Ft. Lauderdale, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on September 3, 2015 for hearing on Plaintiff’s Motion for Final Summary Judgment, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:

It is undisputed that the patient was involved in an automobile accident. There is also no dispute that the patient is covered under a policy issued by State Farm, and that State Farm initially paid this claim, but at a reduced rate.

The parties have stipulated that the treatment at issue in this case is related to the automobile accident and was medically necessary. Therefore, the sole issue for this Court’s consideration is whether the payments made were reasonable.

In support of its Motion, the Plaintiff filed the affidavit of Michael Surdis, Jr., D.C., and its Notice of Identifying Summary Judgment Evidence (pointing to the deposition of Susan Tyson and Defendant’s Answers to Interrogatories, excerpts of which were discussed during the hearing). The Defendant submitted the affidavit of Michael Mathesie, D.C., in an effort to contravene the Plaintiff’s prima facie case.

Upon the review of Plaintiff’s affidavit, the deposition testimony, responses to discovery and review of Plaintiff’s invoices (attached to his affidavit) and 19 HICFs (attached to Defendant’s affidavit), the court finds that Plaintiff has met its burden of establishing the reasonableness of the charges. The court DENIES Defendant’s request to find otherwise because the HICFs were not attached to Plaintiff’s affidavit. The HICFs were generated by Dr. Surdis and the authenticity of the HICFs are not in question. Since Plaintiff has met its burden, the burden now shifts to the Defendant to establish a question of fact.

The court finds that Defendant did not meet its burden to establish a genuine issue of material fact as to the reasonableness of the charges of Plaintiff’s chiropractic services.

The court bases its decision upon review of Dr. Mathesie’s affidavit on the two points discussed herein. The first point focuses on the lack of information provided by Dr. Mathesie about the reasonableness of charges. The second point focuses on his reliance on reimbursement levels without explanation of how that impacts the overall opinion.

CHARGES:

Dr. Mathesie discusses (in great detail) his experience in the chiropractic field and his knowledge of charges, yet he never mentions other charges that would go to show how this provider’s charges are unreasonable. The one and only reference Dr. Mathesie makes to actual charges is to state that he “would have globally charged $4,610.00” for these services (see paragraph 12 of his affidavit). Yet, he does not breakdown how he would have come to that total figure or set forth any methodology or explanation as to why his charges should be the benchmark for determining reasonableness.

This court reviewed each of the HICFs in this case and there are only ten CPT Codes at issue (97124, 97026, 97014, 97010, 97110, 97140, 97014, 98940, 99214 and 99244). Some of these codes, when compared to the reimbursements (outlined in the EORs), evidence only a $10.00 difference. Yet, nowhere in Dr. Mathesie’s affidavit does he explain how this $10.00 difference elevates that particular charge to an “unreasonable charge”.

REIMBURSEMENTS:

Another flaw with Dr. Mathesie’s affidavit appears to be that he bases his entire opinion on what an appropriate reimbursement level should be, instead of focusing on the reasonableness of the charges (or at least explaining how the reimbursement should effect the setting of prices).

Dr. Mathesie states in that State Farm’s reimbursement is considered to be at the highest end of reimbursement rates for all health insurance carriers, and goes on to state that “. . .I have always accepted the amount allowed by State Farm as full payment for covered services. . .and consider this reimbursement amount very reasonable.” (See paragraph 6 of his affidavit.)

Dr. Mathesie goes on to make similar (and numerous) conclusory statements within his ten (10) page affidavit, focusing on State Farm’s reimbursement levels. These statements, taken to their logical conclusion, would stand for the proposition that it is his opinion that no provider should be charging any more than what State Farm is willing to reimburse.

Then Dr. Mathesie discusses Medicare reimbursements. However, he fails to set forth a valid basis or methodology to explain why the Plaintiff’s charges are “unreasonable” simply because Medicare and other health insurance reimburse less. The fact that Medicare and health insurance reimburse less than the amount billed by the Plaintiff, by itself, is not sufficient to create a question of fact that the Plaintiff’s charges were unreasonable.

Finally, it is undisputed that the Defendant paid the charges at 200% of the Medicare rate, although it had not properly adopted this method in its policy. The crux of Dr. Mathesie’s opinion is therefore that nothing above 200% of the Medicare rate would ever be reasonable for a chiropractor’s services. Assuming that Dr. Mathesie’s bald assertion gets over the Daubert threshold, this type of opinion has been repeatedly rejected by the Courts as rendering the Florida Supreme Court’s decision in Virtual Imaging meaningless. See Hialeah Medical Assoc., Inc. v. United Automobile Ins. Co., Opinion, Case No. 12-229 AP (11th Cir. Ct. Mar. 7, 2014) [21 Fla. L. Weekly Supp. 487b] (appellate capacity); State Farm Mutual Automobile Ins. Co. v. Imaging Centers of Pensacola, Inc., Order Affirming Lower Court’s Orders and Judgments, Case No. 2012-AP-52 (1st Cir. Ct. Mar. 3, 2014) [21 Fla. L. Weekly Supp. 979a] (appellate capacity); United Automobile Ins. Co. v. Hallandale Open MRI, Inc., Opinion, Case No. 12-19662 CACE (17th Cir. Ct. 2013) [21 Fla. L. Weekly Supp. 399d] (appellate capacity); Millennium Radiology LLC v. United Automobile Ins. Co., Order Granting Plaintiff’s Amended Motion for Summary Judgment, Case No. 11-17736 COCE (Broward Cty. Ct. 2013).

During the hearing, the court and the parties made reference to permitting the parties to supplement their affidavits if the court determined (after taking the matter under advisement) that the affidavits were technically deficient and could be cured by supplementing.

This court has determined that Plaintiff’s affidavit is sufficient and does not require amendment.

The court finds that Defendant’s affidavit is not just technically deficient (as originally thought during the hearing) but is materially deficient under Rule 1.510(e). The deficiency goes to the heart of the expert’s opinion. Therefore, the court is exercising its discretion not to provide Defendant an opportunity to supplement or amend.¹

Accordingly, it is hereby ORDERED and ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. The Plaintiff shall submit a proposed final judgment for this court’s consideration.

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¹The posture of this case is also a consideration in this Court’s decision not to permit Defendant to supplement its affidavit. This matter is on the Court’s upcoming trial docket. The discovery period has closed. The pretrial conference is scheduled for September 25, 2015 and the trial period begins on October 6, 2015. At this juncture, Defendant’s expert should have been fully prepared to explain the basis of his opinion.