23 Fla. L. Weekly Supp. 966a
Online Reference: FLWSUPP 2309SHAWInsurance — Personal injury protection — Coverage — Medical expenses — Relatedness and medical necessity of services — Summary disposition — Opposing affidavit filed by insurer does not preclude summary disposition in favor of medical provider on issue of relatedness of MRI where insurer’s expert relied on photographs of vehicle not associated with insured’s accident, and affidavit is self-serving and conclusory — Insurer cannot rely on documents shielded from discovery as work-product to dispute relatedness and necessity of MRI — MRI used to determine whether accident was cause of injury and rule out rotator cuff injury is compensable
HEALTH DIAGNOSTICS OF ORLANDO, LLC, d/b/a STAND-UP MRI OF ORLANDO, a/a/o Tonya Shaw, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO13-009979(70). February 11, 2016. Honorable John D. Fry, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Kathryn M. Winkler, Kirwan, Spellacy & Danner, Fort Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY DISPOSITION AS TO RELATEDNESSAND MEDICAL NECESSITY
This cause came before the Court on November 04, 2015, after due notice to the parties, on Plaintiff’s Motion for Summary Disposition.1 The amount in controversy for PIP benefits (and/or Med Pay) benefits is a total of $1,280.00. At the time of the hearing, this case has been pending for 794 days. After careful consideration, the Court finds no triable issue and hereby grants Summary Disposition in favor of the Plaintiff as to relatedness and medical necessity.2Factual and Procedural Background
1. This small claims lawsuit, which was filed on September 01, 2013, arises out of a claim for unpaid personal injury protection benefits regarding an MRI of the left shoulder (CPT code 73221) that was performed on November 08, 2012.
2. Defendant previously moved for summary disposition as to the issues of medical necessity and relatedness, which was heard on August 03, 2015.
3. At the hearing on August 03, 2015, Plaintiff raised several issues that caused this Court significant concern, including that Defendant failed to timely list Dr. Aujla on its expert witness list, that Defendant raised a work product objection to discovery relevant to the issues of medical necessity and relatedness, that Dr. Aujla’s testimony fails under the Daubert Standard, and that Dr. Aujla relied on photographs of a vehicle that were not authenticated and may not be related to the subject motor vehicle accident when forming his opinion.
4. The Court denied Defendant’s motion without prejudice and allowed both parties to re-notice their respective motions for summary disposition for hearing at a later date to give Defendant an opportunity to correct or supplement its affidavit and to give Plaintiff the opportunity to file an affidavit.
5. In the meantime, on September 04, 2015, Kathryn M. Winkler, Esq. from Kirwan, Spellacy & Danner P.A. filed a notice of appearance, which was followed by a stipulation for substitution of counsel filed on September 15, 2015.
6. On September 23, 2015, Plaintiff filed its motion for summary disposition as to medical necessity and relatedness.
Analysis and Findings of Fact re: Relatedness and Medical Necessity
The Plaintiff filed this small claims lawsuit against the Defendant for breach of a contract of personal injury protection benefits (and/or med pay) under the Florida No-Fault law. The matter is ripe for Summary Disposition as there has been more than sufficient time for the parties to diligently take advantage of discovery opportunities and to complete all reasonable discovery, and any pending discovery would not be material to the issue(s) currently before the Court.
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. In this case, Plaintiff moves for Summary Disposition based on the sufficient and competent affidavit of Dr. Robert S. Roberts, M.D., who, based on substantial showing, avers that the MRI performed at Plaintiff’s facility on November 08, 2012 is related to the automobile accident at issue and was medically necessary to accurately diagnose and confirm the claimant’s injuries sustained as a result of the automobile accident at issue and to rule out a rotator cuff tear.
Under the holdings of existing case law, the Court finds that the affidavit of Dr. Roberts is sufficient for the Plaintiff to meet its burden of proof as to relatedness and medical necessity thereby shifting the burden to Defendant to demonstrate the existence of a triable issue.
It is well-settled law in Florida that the party seeking to contest an expert opinion must either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence.
In this case, the only record evidence that Defendant presented for this Court to consider in opposition to Plaintiff’s motion was a sworn affidavit from Dr. Narinder S. Aujla, M.D. and a sworn affidavit from Tina White. The Court starts its analysis regarding Defendant’s filed affidavits by noting that Defendant failed to resolve any of the issues that concerned the Court regarding the affidavit dated July 17, 2015.
Dr. Aujla’s Testimony Does Not Satisfy the Daubert Standard
Florida Statute § 90.702, regarding the Daubert standard, states as follows:
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, skills, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
The testimony is based upon sufficient facts or data;
The testimony is the product of reliable principles and methods, and;
The witness has applied the principles and methods reliably to the facts of the case.
In order to offer an opinion in accordance with the Daubert standard, “the subject of an expert’s testimony must be ‘scientific knowledge.’ ” Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492, 498 (Fla. 3DCA 2014) [39 Fla. L. Weekly D865b], quoting Daubert at 590. “In order to qualify as ‘scientific knowledge,’ an inference must be derived by the scientific method.” Id.
In this case, Dr. Aujla, in forming his opinion on relatedness, relies upon “photographs of the claimant’s vehicle taken following the accident” to suggest that “the claimant’s shoulder injury does not correlate with the mode of impaction from the front of the vehicle”. This Court again finds that Dr. Aujla’s opinion is inherently flawed based on the fact that the photos heavily relied upon in forming his opinion were not the claimant’s and there is no admissible evidence that they had any relation to the accident in this case.3
However, even if the photos were correct, Dr. Aujla’s testimony regarding relatedness cannot be said to be sufficiently reliable and does not comply with the Daubert standard; therefore, Dr. Aujla’s opinion cannot rise to the level of either defeating a motion for summary disposition or obtaining an order granting summary disposition. In Pan Am Diagnostic Services, Inc. (a/a/o Demetrius A. Sears) v. United Auto. Ins. Co., Case No. 11-10218 COCE (53) [20 Fla. L. Weekly Supp. 937a], Judge Lee recognized the well settled law that a court may consider evidence at a summary judgment hearing only if it “would be admissible in evidence.” As such, if a proffered expert would be unable to testify as an expert at trial then that same testimony cannot be used at a summary judgment or summary disposition hearing in an effort to either create a disputed issue of material fact or demonstrate that there is no triable issue. See State Farm Fire & Cas. Co. v. Champion Chiropractic & Rehab, Inc., 20 Fla. L. Weekly Supp. 482a (17th Cir. Ct. 2013) (appellate capacity).
Dr. Aujla’s Affidavit is Self-serving and Conclusory
It is well settled that a conclusory affidavit of a party is insufficient to create a disputed issue of fact. See Master Tech v. Mastec, 49 So. 3d 789, 791 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2381a]. A party does not create a disputed issue of fact by merely stating factual conclusions. Id
The affidavit of Dr. Aujla stating the claimant’s injury is “related to her housekeeping work and is not related to the accident” and that the “MRI of the left shoulder performed by Health Diagnostics of Orlando, LLC d/b/a Stand-Up MRI of Orlando on November 8, 2012 was not related to the motor vehicle accident of April 5, 2012” is self-serving, conclusory, devoid of sufficient facts or data, is based on inadmissible hearsay, and lacks reliable principles, methodology, foundation or the basis for the opinion.
Defendant Cannot Use a Work Product Privilege Objection as both a Sword and Shield
In Northup v. Acken, 865 So. 2d 1267 (Fla. 2004) [29 Fla. L. Weekly S37a], the Florida Supreme Court reiterated its holding in Surf Drugs, Inc. v. Vermette, 236 So. 2d 108 (Fla. 1970) and Dodson v. Persell, 390 So. 2d 704 (Fla. 1980) that “when a party reasonable expects or intends to utilize an item before the court at trial, for impeachment or otherwise, the . . . document, exhibit, or other piece of evidence is fully discoverable and is not privileged work product.” The Court reasoned that “if the evidence or material is reasonable expected or intended to be disclosed to the court or jury at trial, it must be identified, disclosed, and copies provided to the adverse party in accordance with the trial court’s order and the discovery requests of the opposing party.”
In Martin v. Lea of Broward, Inc., 890 So. 2d 1244 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D232a], the Fourth District Court of Appeal reversed a final judgment entered against a Plaintiff because the trial court allowed the Defendant to use a document as evidence that was not produced during discovery based on Defendant’s privileged work product objection.
In response to Plaintiff’s discovery propounded in the case at bar, Defendant raised a work product objection to discovery relevant to the issues of medical necessity and relatedness. Since a party is not permitted to use this objection as both a sword and a shield, the Court will not allow Defendant to rely upon any documents or evidence that the Defendant objected to as work-product privilege and failed to disclose to the Plaintiff on those grounds during the discovery phase of this case.
An MRI Utilized to Determine Whether an Accident was the Cause of an Injury or to Rule Out an Injury is Compensable Under PIP
Banyas v. American Mutual Fire Ins. Co., 359 So. 2d 506 (Fla. 1st DCA 1978) involved a PIP case where an insured with a pre-existing heart condition suffered a chest injury in a motor vehicle accident. The insured’s primary care physician referred the insured to a cardiologist for a heart catheterization that revealed that the cause of the insured’s chest pain was his pre-existing heart condition and not the car accident. The Banyas Court held that the heart catheterization test was related and medically necessary as a means to determine whether or not the car accident was the cause of the insured’s chest pain.
Farmer v. Protective Casualty Ins. Co., 530 So. 2d 356 (Fla. 2nd DCA 1988) involved a PIP case where an insured required reconstructive nose surgery as a result of injuries sustained in a car accident. The insured continued to experience breathing difficulty after the surgery and one year after the accident, he was referred to an allergist who determined that the breathing difficulty was not connected to allergies, but was instead related to the injuries sustained in the motor vehicle accident. The Court held that the allergist’s treatment was related and medically necessary even though allergies were not the cause of the breathing problems.
In Ridenour v. Sharek, 388 So. 2d 222 (Fla. 5th DCA 1980), The driver of an automobile, shortly after a car accident, began experiencing tremors. He presented to the hospital where a battery of tests revealed the tremors were the result of Parkinson’s disease and not the car accident. The Fifth District, relying on Banyas, held that the medical and hospital expenses incurred in an effort to diagnose the tremors was medically necessary and related in order to determine whether or not the motor vehicle accident was the cause of the injuries and that as a matter of law the trial court should have directed a verdict for the medical and hospital charges.
Since there is no record evidence refuting that the purpose of the MRI at issue in this case was to rule out a rotator cuff injury, the test is compensable under PIP.
The Court finds that there is no triable issue with respect to the remaining issues of medical necessity and relatedness. Accordingly, Plaintiff’s Motion for Summary Disposition is hereby GRANTED.
The Court finds that there are no triable issues remaining in this matter.
ORDER AND ADJUDGED that Plaintiff, HEALTH DIAGNOSTICS OF ORLANDO, LLC, D/B/A STAND-UP MRI OF ORLANDO, a/a/o Tonya Shaw does have and recover from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, the sum of $1,280.00, plus prejudgment interest of $195.19 for a total sum of $1,475.19, 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 attorneys’ fees and costs and this Court retains jurisdiction to determine the amount of same.
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1At the Defendant’s request, the Court invoked the rules of civil procedure at the pre-trial conference. However, the Court reserved Small Claims Rule 7.135.
2The Court entered an order granting Plaintiff’s Motion for Summary Disposition as to reasonableness on September 28, 2015.
3The affidavit of Tina White attached the same unrelated photos.
