23 Fla. L. Weekly Supp. 766a
Online Reference: FLWSUPP 2307ABALInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of MRI charge where affiant is not qualified to render opinion on reasonableness of charge and opinions are not based upon sufficient facts or data and are not product of reliable principles and methods — Deposition filed by insurer also does not preclude entry of summary judgment where deposition substantiates reasonableness of charge
MILLENNIUM RADIOLOGY, LLC A/A/O a/a/o Gladys Aballi, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-9614SP23(06). September 25, 2015. Spencer Multack, Judge.
AMENDED1 ORDER GRANTING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on August 31, 2015, for hearing of the Plaintiff’s Motion for Final Summary Judgment, and the Court 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:
As a result of Court’s granting partial summary judgment in favor of the Plaintiff for the relatedness and necessity of the provided treatment, the only remaining issue to be determined is the reasonableness of Plaintiff’s charge. The Plaintiff has submitted the affidavit of Roberta Kahana, owner of Millennium Radiology and the Defendant has submitted the deposition of Roberta Kahana and the affidavit of Dr. Michael Propper.
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 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; Iowa Mutual Nat’l Ins. Co. v. Worthy, 447 So.2d 998 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409 (Fla. 1st DCA 1979); State Farm Mutual Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a (11th Cir. Ct. 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 Ins. Co., Inc., 28 So.3d 158 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So.2d 1122 (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 (Fla. 4th DCA 1994). The Court finds in the matter sub judice, the Plaintiff has submitted sufficient evidence to meet its prima facie case.
In opposition, the Defendant relied on the affidavit of Dr. Michael Propper and the deposition of Roberta Kahana. The deposition of Roberta Kahana did not give rise to any genuine issue of material fact which would give the Court grounds to deny the Motion for Summary Judgment. Contrary to the Defendant’s position, Kahana’s deposition further substantiated the reasonableness of the Plaintiff’s charge.
Furthermore, The Court applies the Daubert standard to Dr. Propper as he is being submitted to the Court as an expert witness. Under the amendments to the Florida expert opinion law, a party faces a greater burden in presenting expert opinion than it did under the former law. Under the new law, the proponent of the opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data.” See Fla. Stat. §90.702(1) (2013).
2Although Dr. Propper’s Affidavit presents his qualifications, none of his work experience or qualifications were in the same or similar geographic region as the plaintiff’s services. Moreover nothing in his affidavit or his work experience attached shows that he would have the requisite knowledge about the MRI diagnostic market to proffer the statements or conclusions about MRI pricing or reimbursement in Dade County. His affidavit does not detail any work experience that would place him in the position to oversee the setting of charges or systematically reviewing reimbursements for MRI services in order to support the broad brush statements in his affidavit. The Affidavit does not reference any studies, analysis, calculations, surveys, data review, compilations or that Dr. Propper utilized any specialized skill which would make his opinion admissible pursuant to Daubert standards. At best, he is providing anecdotal information about his understanding of medical pricing for medical services in general without any explanation of how this applies to MRI diagnostic services. As such, his conclusion is not “based upon sufficient facts or data,” and his conclusions are not the “product of reliable principles and methods,” as required by Fla. Stat. §90.702. See Perez v. Bell South Telecommunications Inc., 138 So.3d 492 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D865b].
For the reasons stated above, Defendant has not come forward with any admissible evidence demonstrating it paid a “reasonable” amount which would create a genuine issue of material fact. Accordingly, it is hereby:
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. The Plaintiff is directed to submit to the Court a proposed final judgment.
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1The amendment changes the name of the assignee to Gladys Aballi. The name “Eusebio Mourino” was inadvertently left on the order.
2After reviewing Dr. Propper’s affidavit, the Court adopts the findings as written by Judge Sharon Zeller in Coastal Radiology, LLC. V. State Farm Insurance, 22 Fla. L. Weekly Supp. 166a (August 5, 2014).
