23 Fla. L. Weekly Supp. 622a
Online Reference: FLWSUPP 2306MCCAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Where Medicare Part B fee schedule was not incorporated into PIP policy, insurer is not entitled to use that fee schedule as sole basis to limit reimbursement or as sole factor when determining reasonableness of MRI charge — Where insurer elected to automatically reduce medical provider’s charge to predetermined reasonable rate by applying Medicare fee schedule, insurer cannot retroactively change its position and claim that payment methodology was based on factors set forth in section 627.736(5)(a)1 — Summary disposition in favor of provider
HEALTH DIAGNOSTICS OF FORT LAUDERDALE, LLC, d/b/a STAND-UP MRI OF FORT LAUDERDALE, a/a/o Cletus McCauley, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO12-10925(73). October 21, 2015. Steven P. DeLuca, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Frantz Nelson, Vernis and Bowling of Broward, P.A., Hollywood, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY DISPOSITION
THIS CAUSE having come on to be heard on April 17, 2014, on the above-referenced motion and the Court having heard argument of counsel, having reviewed the Court file, and being otherwise advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED as follows:STANDARD OF REVIEW
Pursuant to Florida Small Claims Rules 7.135, “At pretrial conference or at any subsequent hearing, if there is no triable issue,1 the court shall summarily enter an appropriate order or judgment.”BACKGROUND
1. This more than 1.5-year-old lawsuit arises out of a claim for unpaid personal injury protection benefits in the amount of $861.48.
2. On or about March 02, 2011, Cletus McCauley was injured in an automobile accident.
3. Prior to the date of the accident, Defendant issued a policy of insurance that provided PIP benefits to Cletus McCauley and this policy was in full force and effect on March 02, 2011.
4. The policy issue date, the accident date,2 and the date of service3 all occurred after the January 01, 2008 effective date of the amendment to the PIP statute.
5. Due to the injuries sustained as a result of the above mentioned automobile accident, the Plaintiff rendered diagnostic testing to Cletus McCauley on April 19, 2011.
6. Plaintiff timely submitted its bills for the services provided by the Plaintiff’s facility to the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
7. Plaintiff charged $1,600 for each MRI at issue in this case for a total of $3,200.
8. Defendant initially reimbursed Plaintiff $1,179.14, which was made pursuant to the Outpatient Prospective Payment System (“OPPS”).
9. On or about March 30, 2012, Defendant, in response to Plaintiff’s demand letter, made an additional payment of $519.38, which represents the difference between the initial OPPS payment and 80% of 200% of the allowable amount under the participating physicians schedule of Medicare Part B.
10. The Explanation of Review indicated, in pertinent part, “The payment for this service is based upon 200% of the Participating Level of Medicare Part B fee schedule for the region in which the services were rendered.”
11. Defendant has issued no policy endorsements, amendments or riders, applicable to this case, which specifically mentions the Medicare Part B fee schedule as the amounts that Defendant would reimburse healthcare providers for benefits arising out of the PIP portion of the insurance policy at issue.
12. Additionally, Defendant’s policy of insurance at issue in this case does not specifically state in writing that Defendant will apply the permissive reimbursement limitations found in Florida Statute § 627.736(5)(a)(2).
13. Nevertheless, Defendant relied exclusively on 200% of the allowable amount under the participating physicians schedule of Medicare Part B when determining the amount to pay Plaintiff for the services at issue in this lawsuit. In other words, Defendant did not rely upon any other factor set forth in Fla. Stat. 627.736(5)(a)(1).
14. On or about November 30, 2012, Plaintiff filed the instant lawsuit seeking payment for $861.48 in unpaid PIP benefits for the services provided to Cletus McCauley.
15. Defendant filed its Answer and Affirmative Defenses on or about February 25, 2013.
16. On March 11, 2013, Plaintiff served discovery on Defendant, which included request for admissions.
17. Defendant’s responses to Plaintiff’s discovery were due on or before April 15, 2013.
18. Defendant failed to timely serve its responses to Plaintiff’s request for admissions and has failed to seek any withdrawal or amendment from the technical admissions that followed.
a. Request for Admission #7 states “Admit that Defendant has no medical report with regard to any medical treatment for which benefits are sought by Plaintiff specifically stating that the treatment was “not reasonable, related, or necessary” for the care and treatment rendered by the Plaintiff.”
b. Request for Admission #9 states “Admit that the Assignor was involved in an automobile accident on the date described in the Complaint and that the services rendered by the Plaintiff, which are the subject matter of this lawsuit, were related to the automobile accident described in the Plaintiff’s complaint.”
c. Request for Admission #10 states “Admit, for the time period in question, the defendant’s determination of what constitutes “reasonable expenses for medically necessary services,” are those reimbursement amounts permitted by Florida Statute §627.736(5)(a)(2) et al, which is the Medicare Part B fee schedule, or the Florida Workers Compensation fee schedule as found in Florida Statute 440.13 and rules adopted thereunder.”
d. Request for Admission #12 states “Admit that Defendant has issued no policy endorsements, amendments, or riders, which specifically mentions the Medicare Part B fee schedule, or the Florida Workers Compensation fee schedule as the amounts that Defendant will reimburse health care providers for benefits arising out of the PIP portion of the insurance policy at issue.”
e. Request for Admission #15 states “Admit that the services rendered by the Plaintiff, which are the subject matter of this lawsuit, were medically necessary.”
f. Request for Admission #16 states “Admit that the amount charged by the Plaintiff for the bill(s), which are the subject matter of this lawsuit, were reasonable.”
g. Request for Admission #21 states “Admit that Defendant’s policy of insurance does not specifically state in writing that Defendant will apply the permissive reimbursement limitations found in Florida Statute §627.736(5)(a)(2) et al of Florida’s PIP Statute.”
h. Request for Admission #24 states “Admit the Defendant, pursuant to the terms and conditions of the policy and Florida law, has the option of paying claims at a rate higher than set forth Florida Statute §627.736(5)(a)(2).”
i. Request for Admission #26 states “Admit the Defendant does not have any reports prepared by a doctor of the same licensing chapter as the doctor that ordered the MRIs in this case stating that the dates of service described in the complaint was “not reasonable,” “not related,” or “not medically necessary” or in any way indicates that treatment received by the patient is not or would not be reasonable, necessary or related to the accident in question (this includes future treatment).”
j. Request for Admission #30 states “Admit that benefits available pursuant to the subject policy have not been exhausted.”
19. Plaintiff served its responses to Defendant’s written discovery requests in March 2013 — more than 1 year ago.
20. Defendant filed a motion to compel better responses to its written discovery requests on October 01, 2013 — 7 months ago — but took no action to set their motion for hearing until two days before Plaintiff’s motion for summary disposition was set to be heard.
21. On February 17, 2014, Plaintiff filed its notice for jury trial.
22. In February 2014, Defendant filed its motion for summary judgment.
23. In April 2014, Plaintiff filed its motion for summary disposition.
24. The filing of each party’s respective dispositive motions signaled to the Court that discovery has been completed and that this matter is ripe for final resolution.
ANALYSIS AND CONCLUSION
25. In Geico General Insurance Company v. Virtual Imaging Services, Inc.,4 the Florida Supreme Court addressed the following issue:
With respect to PIP policies issued after January 1, 2008, may an insurer limit reimbursements based on the Medicare Fee Schedules identified in Section 627.736(5)(a), Florida Statutes, without providing notice in its policy of an election to use the Medicare Fee Schedules as the basis for calculating reimbursements?5
26. In Virtual Imaging, the insured was injured in an automobile accident and received two MRIs to help diagnose those injuries. The MRI facility charged $3,600 for the two MRIs. Like the insurance company in our case, Geico limited reimbursement to 80% of 200% of the applicable Medicare fee schedule, despite the fact that the insurance policy essentially provided that it would pay “80% of medical expenses”6 and the policy of insurance did not “include any reference to the Medicare fee schedules”.7
27. The Florida Supreme Court reasoned that “notice to the insured, through an election in the policy, is necessary because the PIP statute, section 627.736, requires the insurer to pay ‘reasonable expenses . . . for medically necessary . . . services, § 627.736(1)(a), Fla. Stat., but merely permits the insurer to use the Medicare fee schedules as a basis for limiting reimbursements.’ ”
28. The Florida Supreme Court held that “the insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements.”8 In other words, “because the policy did not [clearly and unambiguously] reference the permissive Medicare fee schedule method of calculating reasonable medical expenses, [the insurer] was not permitted to limit reimbursements in accordance with the Medicare fee schedules.”9 (Emphasis added).
29. Although the Broward County and Miami-Dade County Judiciary did not have the benefit of the Florida Supreme Court’s decision in Virtual Imaging at the time that the following decisions were entered, Broward County and Miami-Dade County Judges across the board have been consistent in their rulings on this issue and these decisions are also consistent with the Florida Supreme Court’s ruling in Virtual Imaging.
a. In Precision Diagnostics, Inc. (a/a/o Demetre Curtis) v. State Farm Mutual Automobile Ins. Co.,10 Judge Gary Cowart granted Plaintiff’s Motion for Partial Summary Judgment Regarding Policy Language Controlling Over Permissive Statutory Language. Judge Cowart reasoned that “the fee schedule was not permitted to be applied in this case as the applicable policy made no reference to the permissive methodology of subsection 627.736(5)(a)(2).”
b. In Precision Diagnostics, Inc. (a/a/o Gilberto Souza) v. State Farm Mutual Automobile Ins. Co.,11 this Court granted Plaintiff’s Motion for Partial Summary Judgment Regarding Policy Language Controlling Over Permissive Statutory Language and reasoned that “the fee schedule was not permitted to be applied in this case as the applicable policy made no reference to the permissive methodology of subsection 627.736(5)(a)(2).”
c. In Health Diagnostics of Fort Lauderdale, LLC, f/k/a Damadian MRI in Pompano Beach, P.A., d/b/a Stand-up MRI of Fort Lauderdale (a/a/o John Winn) v. USAA Casualty Insurance Company,12 this Court granted Plaintiff’s Motion for Summary Judgment as to Reasonableness and reasoned that the “issue as it relates to the element of reasonableness in PIP cases is not whether the Defendant paid what it believes to be a reasonable amount. To the contrary, the issue is whether the amount charged by the medical provider is reasonable.” This Court further reasoned that “If this Court were to agree with Defendant’s position — which it does not — that 80% of 200% of the Medicare Part B fee schedule is the maximum amount that a medical provider may charge, such a ruling would serve to erroneously circumvent the binding precedent that unequivocally states that an insurance company may not limit a medical providers reimbursement to 80% of any fee schedule set forth in Fla. Stat. § 627.736 unless the applicable insurance policy makes a specific election to do so.”
d. In Miramar Chiropractic Center, LLC, d/b/a Miramar Medical Center, Inc. (a/a/o Fedner Alincy) v. State Farm Mutual Automobile Ins. Co.,13 Judge Martin R. Dishowitz granted Plaintiff’s Motion for Partial Summary Judgment Regarding Policy Language Controlling Over Permissive Statutory Language. Judge Dishowitz reasoned that “the fee schedule was not permitted to be applied in this case as the applicable policy made no reference to the permissive methodology of subsection 627.736(5)(a)(2). The Court further finds that the Defendant is required to issue payment at 80% of reasonable expenses as set forth in its policy.”
e. In Precision Diagnostics, Inc. (a/a/o Ketner Daris) v. State Farm Mutual Automobile Ins. Co.,14 Judge John D. Fry granted Plaintiff’s Motion for Partial Summary Judgment Regarding Policy Language Controlling Over Permissive Statutory Language. Judge Fry reasoned that “the fee schedule was not permitted to be applied in this case as the applicable policy made no reference to the permissive methodology of subsection 627.736(5)(a)(2).”
f. In Hallandale Open MRI, LLC, (a/a/o Gustavo Matienzo & Harriet Daphnis) v. Mercury Insurance Company of Florida,15 Judge John D. Fry granted Plaintiff’s Motion for Summary Judgment. Judge Fry reasoned that “Defendant’s policy of insurance fails to clearly and unambiguously place the insured on notice that the Defendant intended to pay less than 80% of the reasonable expenses. Judge Fry further reasoned that “Defendant may not issue payment, as a matter of law, based on the permissive statutory fee schedule which utilizes 200% of Medicare Part B.”
g. In Oakland Park MRI, Inc. (a/a/o Chad Terpstra) v. Mercury Insurance Company of Florida,16 Judge Robert Lee granted Plaintiff’s Motion for Final Summary Judgment. Judge Lee reasoned that “by including the language of both methods for reimbursement under §§ 627.736(5)(a)1., Fla. Stat. (2008) and 627.736(5)(a)2., Fla. Stat. (2008) in its policy, the insurer has created an ambiguity which must be resolved in favor of the insured.” Judge Lee further reasoned that “If an insurer chooses the 200% of Medicare payment methodology in Fla. Stat. 627.736(5)(a)(2), it cannot also choose to pay using the “reasonable amount” methodology in Fla. Stat. 627.736(5)(a)1.”
h. In Bruce M. Gelch, D.C., P.A. (a/a/o Raul Arbelaez) v. Mercury Insurance Company of Florida,17 Judge Jill K. Levy granted Plaintiff’s Motion for Summary Judgment. Judge Levy reasoned that “Defendant’s policy does not cap the PIP benefits to 200% of Medicare specifically, clearly and unambiguously. Had the Defendant’s policy clearly and unambiguously incorporated F.S. §627.736(5)(a)(2-5) the Defendant would have had safe harbor to pay medical bills based on F.S. §627.736(5)(a)(2-5).”
i. In Open Magnetic Scanning, Ltd. d/b/a Windsor Imaging (a/a/o Jose Cotto) v. United Automobile Insurance Company,18 Judge Sharon Zeller granted Plaintiff’s Motion for Summary Judgment as to Reasonable, Related, and Necessary. Judge Zeller reasoned that “Under the provisions of 627.736(5)(a)1, the purported reasonableness of UNITED’s reimbursement is irrelevant. UNITED’s suggestion that it may avoid further liability because it paid a reasonable amount is inaccurate as a matter of law under 627.736(5)(a)1. The sole consideration under this section is whether [the medical provider] charges a reasonable amount.”
j. In Rivero Diagnostic Center, Inc., (a/a/o Maria Viscarra) v. Mercury Insurance Company of Florida,19 Judge Gonzalez-Meyer denied Defendant’s Motion for Summary Judgment and reasoned that “the Defendant’s policy of insurance fails to clearly and unambiguously elect to utilize the Medicare Part B fee schedule as a limitation on reimbursements for medical expenses under the PIP coverage.”
k. In Roberto Rivera-Morales, M.D., (a/a/o Gloria Carolina Rincon) vs. Allstate Property and Casualty Insurance Company,20 Judge Lourdes Simon granted Plaintiff’s Motion for Summary Judgment and reasoned that the insurance policy did not “clearly and unambiguously notify the insured patient and health care providers of Allstate’s intent to pay pursuant to Florida Statute § 627.736(5)(a)(2). Allstate’s policy fails to adopt the statutory language contained in §(5)(a)(2) and fails to specifically state that Allstate will pay 80% of 200% of the Medicare Part B fee schedule.” As such, the court held that the policy language did not permit the insurance company to limit reimbursement of Plaintiff’s bills to 80% of 200% of the Medicare Part B fee schedule pursuant to Florida Statute § 627.736(5)(a)(2)(f).
l. In High Field MRI of Miami Dade, LLC a/a/o Nohary’s Rodriguez v. United Automobile Insurance Company,21 Judge Michaelle Gonzalez Paulson granted Plaintiff’s Motion for Summary Judgment and reasoned that the insurance policy did not “make a specific election to use the fee schedules prescribed in Fla. Stat. 627.736(5)(a)(2)(f) (2011).” The court further reasoned that despite the language in the insurance policy, Defendant reduced reimbursement pursuant to the provisions set forth in Fla. Stat. § 627.736(5)(a)(2)(f) even though the policy of insurance does not mention anything about the Medicare Part B Fee Schedule.
m. In Hallandale Open MRI, LLC (a/a/o Tramaine Morgan) v. State Farm Mut. Auto. Ins. Co.,22 Judge Louis Schiff granted Plaintiff’s Motion for Summary Judgment as to the reasonableness of the charge and reasoned that “The fact that the PIP statute has a limitation of 200% of medicare under F.S. §627.736(5)(a)(2) is irrelevant as the Defendant has not alleged it paid pursuant to §627.736(5)(a)(2) and 200% of medicare is not a factor to consider within F.S. §627.736(5)(a)(1) which has specific factors. Likewise, whether the Defendant paid a reasonable amount is not an issue for consideration for the jury as Plaintiff has the burden to prove its charge is reasonable.” The court went on to say “[t]he fact that Medicare allows less than the amount billed by the Plaintiff in this case is not sufficient to create an issue of fact that the Plaintiff’s charge was unreasonable as to price.”
n. In Pan Am Diagnostic Services, Inc. (a/a/o Demetrius A. Sears) v. United Auto. Ins. Co.,23 Judge Lee granted Plaintiff’s Motion for Final Summary Judgment as to the reasonableness of the charge and in addition to the analysis of Florida’s new expert opinion law, reasoned that “under the PIP statute, an insurer must pay an amount billed if the amount billed is ‘reasonable’. There is generally not a single amount that is ‘reasonable’, but rather a range. If the provider’s charge falls within that range, the insurer must pay it, even if there are amounts lower in the range of reasonableness.”
30. Since Virtual Imaging, the Broward County Court Judges, the Circuit Court of the Seventeenth Judicial Circuit (acting in its appellate capacity), the Circuit Court of the Eleventh Judicial Circuit (acting in its appellate capacity), and the Circuit Court of the First Judicial Circuit (acting in its appellate capacity) have ruled on the issue presented in the case at bar:
a. In United Auto. Ins. Co. v. Health Diagnostics of Miami, LLC, d/b/a Stand-up MRI of Miami (a/a/o Yolanda Vasques),24 the Circuit Court for the Seventeenth Judicial Circuit, acting in its appellate capacity, affirmed the trial court’s final judgment — despite the fact that Plaintiff submitted no evidence as to the reasonableness of the charge — where the only evidence Defendant relied upon to oppose Plaintiff was the Medicare fee schedules.
b. In Plantation Open MRI, LLC (a/a/o Fernando Venegas) v. State Farm Mut. Auto. Ins. Co.,25 Judge Lee relying on the above appellate decision in Health Diagnostics stated that “the important point relevant to the instant case is that the appellate court apparently agreed that if the only evidence in opposition to Plaintiff on reasonableness is the Medicare fee schedule, such evidence standing alone is insufficient for a trier of fact to decide which fee is ‘reasonable.’ ” Judge Lee granted Plaintiff’s motion for final summary judgment and reasoned as follows:
As noted previously by this Court, there is generally not a single amount that is “reasonable,” but rather a range. If the provider’s charge falls within that range, the insurer must pay it, even if there are amounts lower in the range of reasonableness. As the Defendant is not permitted to use the “200% of Medicare” methodology unless that amount happens also to be a “reasonable” amount standing on its own, it is crucial that some evidence be presented to support the conclusion that the fees schedule amount is reasonable. Merely submitting the fee schedules does not suffice.
c. In Hallandale Open MRI (a/a/o Jhana Hyman) v. State Farm Mut. Auto. Ins. Co.,26 Judge Schiff granted Plaintiff’s motion for summary judgment as to price and reasoned that “The fact Medicare, Medicaid, etc. pays less does not create a question of fact. Reasonable is a range and Plaintiff’s charge is reasonable based on the evidence.”
d. In Health Diagnostics of Miami, LLC (a/a/o Justo Rodriguez) v. United Auto. Ins. Co.,27 Judge Levy granted Plaintiff’s motion for final summary judgment as to reasonable, related and necessary.
e. In Hallandale Open MRI, LLC (a/a/o Rosario Ham) v. State Farm Mut. Auto. Ins. Co.,28 this Court granted Plaintiff’s motion for summary disposition and reasoned that “the fact that State Farm paid what it considers a reasonable amount does not create a triable issue as to whether the charged amounts are reasonable as this is not an issue for the trier of fact.” In addition, the Court pointed out that “the simple fact that Medicare, workers compensation and other government based payors, by themselves, pay less than the billed amount does not, and cannot, create a triable issue. There are reasons why Medicare, which is not insurance as a matter of law, Workers compensation, and other government based payors reimburse at certain amounts and this court will not stack inferences to find that the Plaintiff’s charges are unreasonable simply because Medicare, Workers Compensation and other government based payors reimburse less than the amount charged by Plaintiff. Neither Medicare nor Florida’s Workers Compensation schedules are part of § 627.736(5)(a)(1).”
f. In Hialeah Medical Assoc., Inc. (a/a/o Ana Lexcano) v. United Auto. Ins. Co.,29 the Circuit Court for the Eleventh Judicial Circuit, acting in its appellate capacity, reversed the trial court’s denial of Plaintiff’s motion for summary judgment and remanded for entry of summary judgment in favor of Plaintiff as to pricing and reasonableness. The court reasoned that United could not use the Medicare Fee Schedule in response to the motion for summary judgment.
g. In State Farm Mut. Auto. Ins. Co. v. Imaging Center of Pensacola, Inc., (a/a/o Anthony Perkins, Mary Perkins, Paula Padilla, and Barbara Green),30 the Circuit Court for the First Judicial Circuit, acting in its appellate capacity, affirmed the trial court’s granting of Plaintiff’s motion for summary disposition. The court reasoned that the Medicare fee schedules “cannot be the sole basis for the ‘reasonable amount’ determination.” In addition, the court reasoned as follows:
In this case, State Farm used the schedules as its sole basis to argue that the amounts [Plaintiff] sought for its medical services were not reasonable. The manner in which State Farm used the fee schedules in determining the amounts it believed were reasonable for the medical services provided runs contrary to the option State Farm elected when it entered into its insurance contract with its insured. What State Farm attempted to do in the instant case was to rely upon a method of payment it previously rejected in its insurance contract. To permit an insurer who opted not to pay the medical expense of its insured pursuant to the medicare fee schedules to use those same fee schedules as the sole basis for the determination of reasonable expenses would circumvent the legislative intent of the statute as defined by the Florida Supreme Court in Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc. 2013 WL 3332385, (July 3, 2013).
31. In the case at bar, Defendant’s 1.310(b)(6) corporate designee, Liz Rodriguez, testified in deposition that the specific methodology that State Farm used when it determined the amount to pay Plaintiff for services at issue in this action was 200 percent of Medicare Part B.31 In addition, Ms. Rodriguez testified that State Farm did not know whether Plaintiff’s charge is reasonable or not in this case and that State Farm did not consider any usual and customary charges, payments accepted by the provider, reimbursement levels in the community, nor any other information relevant to the reasonableness of the reimbursement. Remarkably, Ms. Rodriguez testified that in the same claim one medical provider was paid pursuant to Fla. Stat. § 627.736(5)(a)(2) and another was paid pursuant to Fla. Stat. § 627.736(5)(a)(1).
32. Since the Medicare Part B Fee Schedule, as set forth in Fla. Stat. § 627.736(5)(a)(2), was not incorporated into the insurance policy at issue in this case, Defendant is not entitled to use that fee schedule as the sole basis to limit reimbursement or as the sole factor when determining the reasonableness of the charge.
33. In addition, once the Defendant made a determination to automatically reduce medical providers’ charges in an across the board manner to the insurer’s predetermined reasonable rate, which is 200% of the Medicare Part B Fee Schedule rate, Defendant cannot now retroactively change its position and use other factors as set forth in § 627.736(5)(a)(1), which factors Defendant never took into consideration when making the initial decision to pay Plaintiff.
34. In New Smyrna Imaging, LLC, a/a/o Francis Horgan v. State Farm Mutual Automobile Insurance Company,32 County Court Judge Robert Sanders reasoned that “State Farm is not permitted to invoke the payment limitations of 627.736(5)(a)2.f. without complying with the provisions of Kingsway. F.S. 627.736(5)(a)2.f. is a payment limitation.” The court further reasoned that “Under the provisions of 627.736(5)(a)1. the purported reasonableness of State Farm’s reimbursement is irrelevant. State Farm’s suggestion that it may avoid further liability because it paid a reasonable amount is inaccurate as a matter of law under 627.736(5)(a)1. The sole consideration under this section is whether [the medical provider] charged a reasonable amount.” (Emphasis added).
35. The plethora of cases mentioned above are directly on point with the case at bar. The policy in this case contains language to the effect that the Defendant will pay eighty percent of all reasonable expenses and there is nothing in the insurance contract in this case that indicates Defendant was going to limit payments as permitted by Fla. Stat. § 627.736(5)(a)(2). Similar to the cases set forth above, Defendant in this case did not pay 80% of the “reasonable charges” for the medical services at issue in this case. Rather, Defendant improperly limited reimbursement of the bills to 80% of 200% of the Medicare Part B fee schedule amount, and in doing so it relied upon its incorrect interpretation of Fla. Stat. § 627.736(5)(a)(2)(f).
36. In this case, the Defendant inaccurately interpreted the 2008 no-fault statute — similar to how it misinterpreted the same statute with the OPPS issue — when it chose to limit reimbursement of Plaintiff’s bills based exclusively on 80% of 200% of the Medicare Part B fee schedule without making the necessary election in its policy. Once Defendant realized that it had lost this fight based on Kingsway and Virtual Imaging, Defendant changed its position and is now suggesting that it considered all the factors set forth in Fla. Stat. § 627.736(5)(a)(1) when in fact Defendant clearly used the payment methodology set forth in Fla. Stat. § 627.736(5)(a)(2) as its sole basis to pay the subject claim.
37. On January 16, 2014, Miriam Encarnacion was deposed in Accident and Injury Clinic (a/a/o Vernon Hamilton) v. State Farm Mut. Auto. Ins. Co.33 Ms. Encarnacion is the senior director of health information management at Mitchell International, which is a company that provides medical bill review software called “Decision Point” to State Farm for use to audit medical bills.
38. Decision Point essentially automates the claims handling process and allows an insurance company to pick and choose settings that they want the software to utilize when it reviews a submitted bill to determine the reimbursement amount.
39. On pages 16-17 and 38 Ms. Encarnacion testified as follows:
Q. And can you tell me from July 2012 through the present, what were the various options available to State Farm in the Decision Point software to, I guess, calculate reimbursement for medical bills?
A. We have the Medicare fee schedule, work comp fee schedule, and benchmark fee schedule.
Q. Between July of 2012 and the present, do you know which of those three potential fee schedules or potential options State Farm was utilizing?
A. Medicare and work comp.
* * *
Q. Do either of those two fee schedules include usual and customary charges in the community?
A. Not that I’m aware of.
Q. Do either of those two options include payments accepted by the provider in the community?
A. I’m not privy to what is accepted by the community.
Q. Do either of the work comp fee schedule or the 200 percent of Medicare fee schedule take into consideration reimbursement levels in the community?
A. Not that I’m aware of.
* * *
Q. And the 200 percent of Medicare database, does that database take into consideration the reasonableness of the charge submitted by the medical provider?
A. No, it does not.
40. To permit an insurer, such as State Farm, who did not comply with the requirements set forth in Kingsway and Virtual Imaging, which if complied with would have allowed the Defendant to limit reimbursement to 80% of 200% of the Medicare Part B fee schedule, to nevertheless achieve the same exact result by relying exclusively on this same exact fee schedule but claiming that the payment methodology was based on (5)(a)(1) rather than (5)(a)(2) would lead to an absurd result that would circumvent the legislative intent of the statute as defined by the Florida Supreme Court.
41. Under Fla. Stat. §627.736(1)(a), the insurer must provide medical benefits to the insured so long as such benefits are for reasonable, related, and necessary remedial treatment.
42. In support of Plaintiff’s motion, it filed the affidavit of Carmen Rodriguez, the affidavit of Dr. Harry Cooper, D.O., the deposition transcript of Liz Rodriguez, and the deposition transcript of Miriam Encarnacion.
43. Plaintiff also produced a geozip, which was created by the Defendant and provided through discovery in another case. This geozip shows a representative sample of what other MRI providers in the same geographical region as the Plaintiff charge for MRIs. Based on this information in this geozip, the charges range from $1,649 to $5,433.82.
44. Despite Defendant’s technical admissions, as to the issues of reasonableness, medical necessity, and relatedness, this Court finds that the affidavits of both Carmen Rodriguez and Dr. Harry Cooper were legally sufficient to establish that the services at issue in this lawsuit was related to the accident as set forth in Plaintiff’s Complaint, that the services at issue in this lawsuit were medically necessary, and that the Plaintiff’s charges were reasonable.
45. Defendant did not file anything whatsoever in opposition to Plaintiff’s motion and therefore failed to produce any evidence contesting whether any of the services at issue in this lawsuit were related to the accident as set forth in Plaintiff’s Complaint, whether any of the services at issue in this lawsuit were medically necessary, or whether the Plaintiff’s charges were reasonable.
46. The Court finds that there are no triable issues remaining as to these issues and the Court hereby enters summary disposition in favor of the Plaintiff.
ORDERED AND ADJUDGED that Plaintiff, HEALTH DIAGNOSTICS OF FORT LAUDERDALE, LLC, D/B/A STAND-UP MRI OF FORT LAUDERDALE, a/a/o Cletus McCauley does have and recover from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, the sum of $861.48, plus prejudgment interest of $154.66 for a total sum of $1,016.14, which shall bear interest at the legal rate of 4.75%, for all of which let execution issue.
It is further,
ADJUDGED, that Plaintiff is entitled to reasonable attorney’s fees and costs and this Court retains jurisdiction to determine the amount of same.
__________________
1See United Auto. Ins. Co. v. Hallandale Open MRI, LLC, (a/a/o Antonette Williams), Case No. 12-19662 CACE (Fla. 17th Jud. Cir. Ct. Appellate 2013) [21 Fla. L. Weekly Supp. 399d] (explaining that “In deciding whether there is a triable issue, the trial court is given broad authority to determine whether there is a triable issue. Accordingly, Rule 7.135 permits a trial judge to weigh the evidence submitted by the parties in support of and in opposition to summary disposition.”).
2March 02, 2011.
3April 11, 2011.
4No. SC12-905 (Fla. 2013) [38 Fla. L. Weekly S517a].
5See page 3 of the Court’s Opinion.
6See page 6 of the Court’s Opinion.
7See page 20 of the Court’s Opinion.
8See page 4 of the Court’s Opinion.
9See page 21 of the Court’s Opinion.
1019 Fla. L. Weekly Supp. 894a (Fla. Broward Cty. Ct. 2012).
1119 Fla. L. Weekly Supp. 946b (Fla. Broward Cty. Ct. 2012).
1220 Fla. L. Weekly Supp. 292b (Fla. Broward Cty. Ct. 2012).
1319 Fla. L. Weekly Supp. 376a (Fla. Broward Cty. Ct. 2012).
1419 Fla. L. Weekly Supp. 893b (Fla. Broward Cty. Ct. 2012).
1520 Fla. L. Weekly Supp. 676a (Fla. Broward Cty. Ct. 2012).
1620 Fla. L. Weekly Supp. 586a (Fla. Broward Cty. Ct. 2013).
17Case No.: 12-008375 CONO 72 (Fla. Broward Cty. Ct. 2013).
1820 Fla. L. Weekly Supp. 824a (Fla. Broward Cty. Ct. 2013).
1920 Fla. L. Weekly Supp. 596b (Fla. Miami-Dade Cty. Ct. 2013).
2020 Fla. L. Weekly Supp. 451b (Fla. Miami-Dade Cty. Ct. 2012).
2120 Fla. L. Weekly Supp. 930a (Fla. Miami-Dade Cty. Ct. 2013).
2220 Fla. L. Weekly Supp. 683a (Fla. Broward Cty. Ct. 2013).
2320 Fla. L. Weekly Supp. 937a (Fla. Broward Cty. Ct. 2013); See also, Pan Am Diagnostic Services, Inc. (a/a/o Fritz Telusma) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. Broward Cty. Ct. 2013); Millennium Radiology, LLC, d/b/a Millennium Open MRI (a/a/o Melvin Galdamez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Fla. Broward Cty. Ct. 2013).
24Case No.: CACE12-8641 (Fla. 17th Jud. Cir. Appellate 2013).
25Case No.: 2012-1617 COCE 53 (Fla. Broward Cty. Ct. 2013); see also Pan Am Diagnostic Services, Inc. (a/a/o Fritz Telusma) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. Broward Cty. Ct. 2013); Pan Am Diagnostic Services, Inc. (a/a/o Demetrius A. Sears) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 937a (Fla. Broward Cty. Ct. 2013).
26Case No.: 2011-013897 CONO 71 (Fla. Broward Cty. Ct. 2014).
27Case No.: 2011-489 CONO 72 (Fla. Broward Cty Ct. 2014) [21 Fla. L. Weekly Supp. 592a].
28Case No.: 2012-04687CONO73 (Fla. Broward Cty. Ct. 2014) [21 Fla. L. Weekly Supp. 586b].
29Case No.: 2012-229 AP (Fla. 11th Cir. Ct. Appellate 2014) [21 Fla. L. Weekly Supp. 487b].
30Case No.: 2012-AP-000052 (Fla. 1st Cir. Ct. Appellate 2014) [21 Fla. L. Weekly Supp. 979a].
31Transcript p. 21, Lines 14-25 and p. 22, Lines 1-8.
32Case No.: 2012-20804 CONS 71 (Fla. Volusia Cty. Ct. 2013) [20 Fla. L. Weekly Supp. 671a].
33Case No. 2013-31535 COCI.
