23 Fla. L. Weekly Supp. 645a
Online Reference: FLWSUPP 2306TORRInsurance — Personal injury protection — Summary judgment — Reasonableness of charges — Medical provider met burden of establishing reasonableness of MRI charge — Opposing affidavit of insurer’s expert is inadmissible “pure opinion” testimony — Further, affidavit is conclusory and self-serving and is not based on sufficient facts or reliable principles and methods — Accord and satisfaction — Facts do not establish that insurer’s partial payment of charge effected accord and satisfaction where amount of claim was liquidated and not in dispute, insurer did not tender check in good faith, check did not contain conspicuous statement that established payment as full satisfaction, and provider filed affidavit establishing that check was accepted as partial payment — Provider’s motion for final summary judgment is granted
HEALTH DIAGNOSTICS OF MIAMI, L.L.C. D/B/A STAND-UP MRI OF MIAMI, (a/a/o Latresa Torrence), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-02400CONO (70). September 22, 2015. John D. Fry, Judge. Counsel: Thomas J. Wenzel, Cindy A. Goldstein, P.A., Coral Springs, for Plaintiff. Jennifer Lucy, House Counsel of United Automobile Insurance Company, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on September 1, 2015 on Plaintiff’s Motion for Final Summary Judgment and the Court having reviewed the motions, the exhibits, the Court file, relevant legal authorities; the Court having heard oral arguments; and the Court otherwise being advised in the premise, the Court hereby makes the following findings:
The Court finds the following facts by stipulation of the parties: this case concerns a single MRI performed by Health Diagnostics of Miami, L.L.C. d/b/a Stand-Up MRI of Miami (“Stand-Up”) on Latresa Torrence (“claimant”), the service was performed on July 8, 2011 and was medically necessary and related to the claimant’s February 16, 2010 motor vehicle accident, the claimant was covered by a policy of insurance issued by United Automobile Insurance Company (“United”) with a policy period covering January 5, 2010 through January 5, 2011, Plaintiff timely billed Defendant and charged $1,600 for this MRI, on October 19, 2011, Defendant issued payment at a reduced amount of $989.86, and Defendant’s insurance policy did not elect the fee schedule methodology contained in §627.736(5)(a)1, Fla. Stat. (2010). As the amount tendered by Defendant was less than 80% of the billed amount, the instant lawsuit was filed wherein Plaintiff sought the remaining $290.14.
The only remaining issues are: (1) whether the payment issued by Defendant was in accordance with the terms of the insurance policy issued to Latresa Torrence; (2) whether the charge for the service rendered to Latresa Torrence was reasonable; (3) whether there has been accord and satisfaction in accordance with §673.3111, Fla. Stat. For the reasons discussed infra, the Court finds Defendant’s payment was in breach of its duties and obligations of the insurance policy; Plaintiff’s charge of $1600 for a thoracic spine MRI was reasonable; and there was no accord and satisfaction regarding the bill at issue. Accordingly, the Court grants Final Summary Judgment for the Plaintiff.I. Reasonableness of Plaintiff’s Charge and Inadmissibilityof Dr. Edward Dauer’s Testimony
In support of the reasonableness of its charge, Plaintiff filed the affidavit of Carmen Rodriguez. Ms. Rodriguez was the manager overseeing billing and collections for Plaintiff and has demonstrated extensive personal knowledge of charges and insurance reimbursements. She testified that the bill represented the “reasonable, usual and customary charges” and that she has “received full reimbursements from other Personal Injury Protection carriers for the full amount of its bill for the same CPT code at issue in this case”. She surveyed other diagnostic centers to confirm her prices were reasonable. She also personally reviews payments for several other facilities that similarly charge $1,600 and have been reimbursed in full for the same services. The Court is aware that her testimony has been accepted in numerous other cases. See e.g. Health Diagnostics of Miami, LLC (a/a/o Justo Rodriguez) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 592a (Fla. Broward Cty. Ct. 2014). The Plaintiff also relies on Pan Am Diagnostic Svcs., Inc. (a/a/o Fritz Telusma) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. Broward Cty. Ct. 2013) which stands for the proposition that Plaintiff could have met its burden simply by presenting the medical bill in question. Accordingly, this Court finds that Plaintiff has more than satisfied the burden of establishing its prima facie case.
In opposition to the reasonableness of Plaintiff’s charges, Defendant filed the affidavit of Dr. Edward Dauer, M.D. Defendant sought to introduce this affidavit as expert testimony. This Court did not conduct a Daubert hearing. However, in a Summary Judgment hearing, the Court can only consider admissible evidence. See Fla. R. Civ. P. 1.510(e). In order for expert testimony to be deemed admissible, the affidavit must comply with the amendments to the Evidence Code wherein the legislature adopted the Federal Daubert standard. See §90.702, Fla. Stat. (2015); Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993). “The legislative purpose of the new law is clear: to tighten the rules for admissibility of expert testimony in the courts of this state.” Perez v. Bell South Telecomms., Inc., 138 So. 3d 492 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D865b]. Expert testimony must be derived from the scientific method and include empirical testing. Id. The Evidence Code provides that an expert may only testify 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.
While this Court does not impugn Dr. Dauer’s expertise as a radiologist, the Court finds that Dr. Dauer’s affidavit concerning the reasonableness of Plaintiff’s prices is inadmissible “pure opinion” testimony pursuant to §90.702. Dr. Dauer’s affidavit fails to possess even a modicum of credibility, is conclusory, and is wholly self-serving.
Dr. Dauer’s affidavit is inherently self-contradictory. On the one hand he proclaims that nothing over 200% of Medicare could ever be reasonable for an outpatient facility. At the same time, he claims that a reimbursement equal to his $1180 charge would be reasonable. Dr. Dauer’s charge is in excess of the 200% of Medicare cap he placed on reasonableness!
Most importantly, the Court finds that Dr. Dauer’s affidavit does not meet any of the three prong test for admissibility. And accordingly, the Court does not admit his testimony.
Regarding the first prong, his testimony is not based on sufficient facts or data. He only alleges a vague familiarity with pricing that, aside from the operation of his own clinic, is wholly based on hearsay or speculation. His own personal knowledge is limited to Broward whereas this is a Miami-Dade clinic. He vaguely states that the charges and reimbursements are higher in Miami, but does not provide any data regarding the variance of reasonableness between Broward and Dade. His inclusion of Medicare renders his data invalid as Medicare is not one of the enumerated factors of (5)(a)1 and is certainly not insurance. Atkins v. Allstate Ins. Co., 382 So.2d 1276 (Fla. 3d DCA 1980). He even fails to identify the year of the Medicare fee schedule to which he is referring. His review of his own contracted rates with HMO and PPO carriers is irrelevant. There is no connection whatsoever to the scientific method — limiting a dataset to oneself and personally known colleagues is improper and invariably leads to confirmation bias. There is no indication that this study involves any randomization, provides for an adequate sample size, or calculates statistical error.
Regarding the second prong, there is no discernable methodology underlying his testimony. He states his own “pure opinion” that Medicare is the gold standard and then takes the quantum leap to his conclusion that 200% Medicare is the maximum amount that could ever be reasonable regardless of any fact (unless the provider is a hospital). The reason why he decided to double his gold standard remains a mystery (except that double Medicare would be the permitted reimbursement rate if the Defendant had elected the fee schedules in its policy). Similarly, any attempt to base reasonableness on contracted private pay insurance contracts is wholly inappropriate in the PIP context.
Finally, the Court is aware that Dr. Dauer’s attempt to offer expert testimony has been rejected by numerous sister Courts. See Millenium Radiology, LLC, d/b/a millennium Open MRI (a/a/o Roberto Diaz). V. United Auto. Ins. Co., 12-006125 COCE (54), (Broward Cty. Ct. 2015) [22 Fla. L. Weekly Supp. 1100a]; Roberto Rivera-Morales, M.D. (a/a/o Leonor Patricia Storace) v. State Farm Mut. Auto. Ins. Co., 12-02079 SP 26 (03) (Miami-Dade Cty. Ct. 2015). See also Roberto Rivera-Morales, M.D. (a/a/o Rosena Zidor) v. State Farm Mut. Auto. Ins. Co., 12-02632 SP 26 (04) (Miami-Dade Cty. Ct. 2015) (citing numerous cases where Dr. Dauer’s affidavit has been rejected).
Accordingly, this Court finds Dr. Dauer’s testimony inadmissible under §90.702, Fla. Stat. (2015). As Plaintiff met its burden of presenting a prima facie case, as the record is devoid of any competent testimony or evidence to create an issue of fact necessitating a trial, Summary Judgement for the Plaintiff is appropriate.II. Accord and Satisfaction
Defendant contends that Plaintiff’s failure to tender repayment constitutes Accord and Satisfaction pursuant to Fla. Stat. §673.3111(3)(b). However, the facts presented in this case are insufficient to establish that an accord and satisfaction occurred regarding the bill at issue.
Prior to addressing the pleaded issue of whether a failure to repay a sum within 90 days perfects an accord and satisfaction pursuant to §673.3111(3)(b), it is first necessary to determine whether the facts support the proposition that the tendered sums meet the requirements under the preceding sections of this statute. To ultimately prevail on an accord and satisfaction defense, United would have to prove that the instrument: United tendered a check in good faith; the amount of the claim was subject to a bona fide dispute; that Stand-Up obtained payment; and that the check or accompanying written communication contained a conspicuous statement that the amount was being tendered as full satisfaction of the claim. Looking at the evidence, in the light most favorable to United, it is clear that its partial payment does not constitute an accord and satisfaction.
First, the amount of the claim was liquidated and not subject to a bona fide dispute. Defendant was contractually obligated to pay 80% of Plaintiff’s reasonable charge. There was no bona fide dispute over this issue. 80% of Plaintiff’s charge would have amounted to $1280. Instead of paying this liquidated amount, Defendant tendered a lesser amount without asserting that Plaintiff’s charges were unreasonable.
Second, United did not tender the check in good faith. This check was the product of an intentional economic breach of clear contractual language.
Third, and crucial to this Court’s determination, neither the check nor accompanying written communication contained a conspicuous statement that established the payment as full satisfaction. Under the Uniform Commercial Code, it is for the Court to decide whether any writing is conspicuous. See Fla. Stat. §671.201. See also United Auto. Ins. Co. v. Jeffrey L. Stranger, P.A., Inc. (a/a/o Ryan Vincent), 19 Fla. L. Weekly Supp. 927a (Fla. 17th Cir. Ct. App. Div. 2012). This is not a case where the Court was required to analyze font size, color, and contrast. Here, neither the check nor the Explanation of Review (“EOR”) contained any language whatsoever stating the check was made in full satisfaction. The prototypical “full and final” language does not appear anywhere on the check or EOR.
Moreover, the Plaintiff filed the Affidavit of Carmen Rodriguez, the billing manager, who explained, inter alia, that the amounts were accepted as partial payments and not as full satisfaction of the claim. Defendant filed no affidavits or evidence on this issue that would create an issue of fact.
Accordingly, this Court finds that Defendant’s pre-suit payment did not constitute an accord and satisfaction. Rather, this was simply a partial payment issued by Defendant the legal significance of which is only the reduction of the amount presently due and owing to Plaintiff. Plaintiff was not required to repay partial payments to avoid the implications of accord and satisfaction.
Therefore, it is hereby ORDERED AND ADJUDGED, Plaintiff’s motion for Final Summary Judgment is granted.
