23 Fla. L. Weekly Supp. 368b

Online Reference: FLWSUPP 2304FERNInsurance — 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 affidavit is conclusory and lacks foundation, and affiant is not qualified to render opinion on reasonableness of charge — Fact that other MRI centers charged less and that Medicare and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge

MILLENNIUM RADIOLOGY, LLC d/b/a MILLENNIUM OPEN MRI, a/a/o Rosendo Fernandez, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-016575 COCE 51. June 22, 2015. Martin R. Dishowitz, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Jennifer Lucy, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT AS TO PRICE

This cause came before the court, on June 18, 2015, after due notice to the parties, on Plaintiff’s Motion for Summary Judgment relative to whether the charge of $2150 was reasonable for the cervical MRI without contrast (CPT Code 72141) and whether $2150 was reasonable for a lumbar MRI without contrast (CPT Code 72148). They were both performed in 2011. The amount in controversy is $1526.16 which was calculated by taking the billed amount $4300, multiplying it by .8 and subtracting the payment of $1913.84.

After reviewing the pleadings, the affidavits of Roberta Kahana and Dr. Dauer, the evidence, the Plaintiff’s request for admissions and the Defendant’s responses, the rest of the record, and after hearing argument of counsel for the parties, the court finds no issue of material fact and hereby grants Summary Judgment in favor of the Plaintiff as to price. The issue of medical necessity and related was not an issue for the court per the agreement of the parties.

Analysis and findings of fact

The Plaintiff, Millennium Radiology, LLC, sued United Automobile Insurance Company for breach of a contract of personal injury protection benefits under the Florida No Fault law in Small Claims Court. It is undisputed the Defendant’s policy requires the Defendant to pay 80% of all reasonable expenses. See Defendant’s responses to Plaintiff’s request for admissions number 20. Reasonable is a range. It is not a set number. The Plaintiff argues its charge is within the range of what is reasonable.

The Defendant received the Plaintiff’s bill and paid it based on 200% of Medicare, Part B. See Defendant’s response to Plaintiff’s request for admissions filed on 7/15/14, number 24. There is no record evidence the Defendant used any factors other than 200% of Medicare when it issued payment. It is undisputed the Defendant’s policy of insurance does not permit it to pay claims based on 200% of Medicare as a matter of law. As a result, of the Defendant’s failure to pay 80% of the billed amount, the Plaintiff filed suit for the balance.

The matter is ripe for Summary Judgment as there are no pending timely motions to strike, to supplement the record, and there has been sufficient time to complete reasonable discovery and any pending discovery would not be material to the issue before the court.

Millennium Radiology moves for Summary Judgment based on a detailed and competent affidavit of Roberta Kahana, owner and corporate representative, who, based on substantial showing, avers that the amount of Plaintiff’s charge is reasonable.

Roberta Kahana has significant personal experience and knowledge of the MRI industry and what is a reasonable charge for an MRI. She oversees all aspects of the running of the MRI company and billing. She is aware of what other MRI centers (both hospital and non hospital) charge and what the Plaintiff been paid by PIP insurers that pay a reasonable amount. She also relies on two publications, Ingenix and Medical Fees in the U.S. See §90.903(17) and United Auto v. Hallandale Open a/a/o Antoneete Williams, 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. Court 2013). Second tier certiorari was denied by the Fourth DCA. See 39 Fla. L. Weekly Dl883c. The Hallandale a/a/o Williams 17th Circuit Opinion has been cited numerous times State wide to support the court’s decision to grant Summary Judgment and summary disposition.

There is no record evidence and no dispute that the charged amount is unreasonable when compared to what other MRI centers charge as stated in the affidavit of Roberta Kahana. In fact, the Defendant admitted the typical charge it received for MRIs was between $1500 and $2500. See Defendant’s response to Plaintiff’s request for admissions, number 11. The Plaintiff’s charge is in the middle of most other MRI centers. Based on the entire record there is no evidence to dispute the fact the Plaintiff’s charge is within the range of other specific MRI centers and significantly less than what hospitals charge for MRIs. In fact, the Defendant admitted in response to Plaintiff’s request for admissions that it allowed the Plaintiff’s charge of $2150 in 2008.

The Defendant may not defeat a motion for Summary Judgment by raising purely paper issues where the pleadings and evidentiary matters before the trial court show that defenses are without substance in fact or law. Hialeah Medical Assoc a/a/o Lexcano v. United Auto, 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. App. Court 2014). It is not sufficient for the opposing party to merely assert that a question of fact exists.

The Plaintiff seeks Summary Judgment that the price was reasonable. In Pan Am Diagnostic Svcs. Inc. a/a/o Fritz Telusma v. United Auto. Insurance. Co., 21 Fla. L. Weekly Supp. 200a (Fla. 17th Jud. Cir., October 1, 2013) Judge Lee opined:

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, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; Iowa Mutual Nat’l Insurance. Co. v. Worthy, 447 So.2d 998, 1000 n.5 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409, 409-10 (Fla. 1st DCA 1979); State Farm Mutual Auto. Insurance. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (11th Cir. Court. 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 Insurance. Co., Inc., 28 So.3d 158, 160 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So.2d 1122, 1123 (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, 605 (Fla. 4th DCA 1994); Multicare, 12 Fla. L. Weekly Supp. at 33a; Kompothrecas v. Progressive Consumers Insurance. Co., 8 Fla. L. Weekly Supp. 505a, 506 (Sarasota Cty. Court. 2001).

The court finds that Millennium Radiology met its burden of establishing the reasonableness of the MRI charge based on the detailed affidavit of Roberta Kahana and the responses to the Plaintiff’s request for admissions which explains why $2150 is a reasonable charge for an MRI conducted in 2011. Since the Plaintiff met its burden, the burden now shifts to the Defendant to establish a question of fact.

The Court finds United did not meet its burden to establish a genuine issue of material fact as to the reasonableness of the charge for the Plaintiff’s MRI. The affidavit of Dr. Dauer stating the billed amount is unreasonable 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 their opinions that the amount charged was unreasonable. His opinion is being rejected because the methodology is unsupported, he is not relying on relevant factors, and thus, he would be considered unqualified to give ultimate opinions on the reasonableness of the MRI charges. The affidavit fails to establish he is competent to testify to matters stated therein as required by Rule 1.510. He did admit hospitals charged significantly more than the Plaintiff.

Further, there were no non-hearsay relevant documents attached to their affidavits. A conclusory affidavit of a party is insufficient to create a disputed issue of fact. 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.

Dauer’s affidavit fails to indicate what any MRI providers charged, other than his charges, what other MRI providers accept as payment in full, what PIP insurers pay when the insurer pays based on a reasonable amount, what out of network health insurers pay, a factual basis to establish he is qualified to give any opinions on what a reasonable charge is for an MRI in South Florida in 2011, an analysis of how he arrived at his opinion, and he did not attach any of the documents they relied upon to support their opinions.

It is not sufficient to create a genuine issue of material fact simply because the Defendant found one radiologist that charges less than the Plaintiff. There is no dispute that some MRI centers charge less than the Plaintiff in the community. This fact, standing alone, is insufficient to create a question of fact because the issue is whether the Plaintiff’s charge is within the range of what is reasonable and not whether a few MRI centers charged less than the Plaintiff in 2011. Further, the fact Dr. Dauer decided to use the lowest payors in the community is simply insufficient to create a question of fact. He fails to explain sufficiently why the charged amount is unreasonable.

Based on the above and the record, there is no evidence that Dr. Dauer is qualified to give any opinions in this case on what a reasonable charge is for an MRI conducted in 2011 in South Florida. His statement of what Medicare allows and what Health Insurers allow is simply insufficient and unmoving. His knowledge of what medicare and what some private insurance pay for MRIs does not make him qualified to state a billed amount is unreasonable as there is no methodology, analysis. Dauer is not qualified to opine as an expert on what is a reasonable charge according to Fla. Stat. §90.702. His testimony is not based upon sufficient facts or data. His testimony is not the product of reliable principles. Since there is a lack of sufficient facts or data and there is a lack of reliable principles and methods there can be no reliable application of them. See Giaimo v. Florida Autosport, 39 Fla. L. Weekly D2484a (Fla. 1st DCA 2014). His opinion based on his “extensive experience” is nothing more than pure opinion and therefore, unmoving. See Perez v. Bellsouth, 138 So.3d 492 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D865b]. As such, the court rejects his “expert” opinions and his opinion will be considered as lay witnesses by this court.

Opinion testimony of a lay witnesses is only permitted if it is based on what the witness has personally perceived, and usually involves matters such as distance, time, size, weight, form and identity. Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1991) citing Nationwide Mut. Fire Insurance. Co. v. Vosburgh, 480 So.2d 140 (Fla. 4th DCA 1985). See also United Automobile Insurance Company v. Miami Neurology Rehabilitation Specialists A/a/o Maria Broche, 19 Fla. L. Weekly Supp. 799a (11th Cir. App. June 19, 2012)(Testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness, and not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702).

Numerous courts in South Florida have rejected Dauer’s affidavit to defeat Summary Judgment on price. See Hallandale Open a/a/o Vilatte v. United, 22 Fla. L. Weekly Supp. 851a (Fla. Broward County Court 2015, Judge Miranda); Chiropractic Radiology a/a/o Jackson v. State Farm, Case number 13-1106 SP 24 (Fla. Dade Cty Court 2015, Judge Cannava); Milllennium Radiology v. United Auto, 13-01357 CONO 73 and 13-03346 CONO 73 (Fla. Broward County 2015, Judge DeLuca); Millennium Radiology a/a/o Diaz v. United. 12-006125 COCE54 (Fla. Broward County Court 2015, Judge Zaccor); Roberto Rivera Morales /a/o Delva v. State Farm, 12-02735 SP 26 (04) (Fla. Dade County Court 2015, Judge King). In Roberto Rivera Morales, the court cited to many other county court judges that would not accept Dr. Dauer’s opinions as to price.

Thus, based on Dr. Dauer’s affidavit, there is simply no competent admissible evidence to create a question of fact that the charged amount was unreasonable. The fact that an MRI center charged less, Medicare and health insurance allow less than the amount billed by the Plaintiff in this case, by itself, is not sufficient to create a question of fact that the Plaintiff’s charge was unreasonable. See Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D2650b] and State Farm v. New Smyrna Imaging a/a/o Ryan Campbell, Case Number 2013-10005-APCC (Fla. 7th Circuit Court 2014) [22 Fla. L. Weekly Supp. 508a]. Dauer’s affidavit fails to set forth a valid basis to explain why the Plaintiff’s charge is unreasonable simply because his MRI center charged less and Medicare and health insurance pay less. In fact, the Defendant cannot point to one Broward County Judge that agrees with this argument.

United has not rebutted this evidence in the record or offered any proof that the charge is unreasonable, other than the self serving conclusory affidavits of Dr. Dauer. Finding the Plaintiff’s charge is unreasonable based on what Medicare and private insurance allow would require the improper stacking of inferences as Medicare pays what the government sets forth without any regard to what is a reasonable amount for a particular service. While this court will draw all possible reasonable inferences of material fact in favor of the Defendant, this court cannot find the inference that since Medicare and health insurance pay less than the billed amount, there is a question of fact as to what is a reasonable charge. This would not be a reasonable inference to the exclusion of any other reasonable inference based on this record. The purpose of PIP insurance is prompt and speedy payment of medical claims. PIP insurers cannot simply point to a medical provider that charged less, Medicare and some health insurers to defeat Plaintiff’s Summary Judgment based on a valid affidavit that supports the Plaintiff’s motion.

Finally, United’s reliance on Medicare is not persuasive as Medicare is social welfare. See Atkins v. Allstate, 382 So. 2d 1276 (Fla. 3d 1980) where the court held:

But the basic fact is that Medicare is a social welfare program and not an insurance or reimbursement plan within the everyday and ordinary meaning of these terms. Medicare was added to the existing Social Security laws in 1965 and as yet there have been few, if any, judicial decisions defining its scope.

In the appellate decision of Hialeah Medical Assoc a/a/o Lexcano v. United Auto, 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. App. Court 2014) the appellate court held “Medicare fee schedules are not relevant in PIP cases, and should not be used.” In State Farm v. Florida Wellness a/a/o Alonso, 13-022796 (Fla. 17th Cir. Court 2015) [23 Fla. L. Weekly Supp. 88a] the appellate court in Broward affirmed the trial judge which refused to consider an affidavit from Darrell Spell wherein he opined a charge was unreasonable based on Medicare and Medicaid. Here, Dr. Dauer, much like Mr. Spell, does not create a question of fact because his opinions are not based on relevant or sufficient data and he has performed no analysis or investigation to justify his opinions.

Accordingly, Millennium Radiology’s Motion for Summary Judgment is hereby granted as to price only for the reasons set forth above, in the documents filed by the Plaintiff, and the additional reasons argued at the hearing.