23 Fla. L. Weekly Supp. 871a
Online Reference: FLWSUPP 2308GONZInsurance — 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 states that amount is excessive charge unless scan was performed at licensed facility, and provider is fully licensed facility — Fact that provider accepts lower payments from cash paying patients on rare occasions does not create factual issue as to reasonableness of charge — Insurer that did not unambiguously elect in policy to limit reimbursement to permissive statutory fee schedule cannot limit payment to fee schedule
OPEN MAGNETIC SCANNING, LTD. d/b/a WINDSOR IMAGING, a/a/o Lorie Gonzalez, Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-007121 COWE 80. December 9, 2015. Ellen Feld, Judge. Counsel: Marc Finkelstein, Law Office of Marc Finkelstein, P.A., Fort Lauderdale, for Plaintiffs. Jennifer White, Law Office of Julie Lewis Hauf, P.L., West Palm Beach, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT AS TOTHE ISSUE OF REASONABLENESS
THIS CAUSE came before the Court, after due notice to the parties, on Plaintiff’s Motion for Final Summary Judgment as to Reasonableness on November 20, 2015. The issue being considered was whether the charge of $1,900.00 was reasonable for the cervical MRI without contrast (CPT Code 72141) and $1,900.00 was reasonable for the lumbar MRI without contrast (CPT Code 72148) performed in 2011. The amount in controversy is $1,205.79. After reviewing the pleadings, the affidavits, the depositions, the evidence, the Plaintiff’s Request for Admissions and Defendant’s Responses, the Plaintiff’s Interrogatories and Defendant’s Verified Answers, 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 Final Summary Judgment in favor of Plaintiff as to the reasonableness of the price.
The Plaintiff, Open Magnetic Scanning Ltd. d/b/a Windsor Imaging, sued State Farm Mutual Automobile Insurance Company (hereinafter “STATE FARM”) for a breach of contract of personal 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. In this case, Plaintiff timely submitted a bill to STATE FARM for CPT Code 72141 and CPT Code 72148 in the amount of $3,800.00 for the MRIs in question which took place in 2011 and argues its charge is within the range of what is reasonable. It is undisputed STATE FARM received the bill and paid it based on 200% of the Participating Level of Medicare Part B, and not 80% of the billed amount. The amount tendered by the Defendant was not accepted as payment in full by the Plaintiff who, after serving the demand letter, sued STATE FARM for breach of contract for the balance.
On or about July 11, 2013, Plaintiff filed the instant claim for breach of contract to recover the improperly reduced personal injury protection benefits. On or about October 8, 2013, Defendant served its Answer to Plaintiff’s Complaint. The parties engaged in pretrial discovery. The only remaining issue is whether the amount charged for the services provided by the Plaintiff was reasonable.
On or about June 16, 2015, Plaintiff served its Motion for Final Summary Judgment. On August 17, 2015, Plaintiff filed its Notice of Filing the Deposition Transcript of STATE FARM’s corporate representative, Lisa Nazario. On November 18, 2015, Defendant filed its Notice of Filing the Deposition Transcript of Raymond Windsor taken in the case of Open Magnetic Scanning, Ltd. d/b/a Windsor Imaging a/a/o Venaal Gentles v. State Farm Mutual Automobile Insurance Company, Case No.: 13-6876 COWE 82 (Broward Cty. Court). On November 18, 2015, Defendant also filed its Notice of Filing the Affidavit of Dr. Michael Propper. Plaintiff’s Motion for Final Summary Judgment was set for November 20, 2015.
The Court considered all arguments made by counsel in ruling on this matter and the arguments made in the Plaintiff’s motion.
On November 20, 2015, a hearing was held on the Plaintiff’s Motion for Final Summary Judgment. In support of its Motion, Plaintiff relied on the affidavit of Raymond Windsor, the owner of Open Magnetic Scanning, Ltd., and the deposition transcript of Defendant’s corporate representative, Lisa Nazario. Defendant filed an affidavit of Dr. Michael Propper and the deposition transcript of Raymond Windsor taken in the case of Open Magnetic Scanning, Ltd. d/b/a Windsor Imaging a/a/o Venaal Gentles v. State Farm Mutual Automobile Insurance Company, Case No.: 13-6876 COWE 82 (Broward Cty. Court) in opposition to Plaintiff’s Motion for Final Summary Judgment. Mr. Windsor testified that he is the owner of Open Magnetic Scanning, Ltd. d/b/a Windsor Imaging, (“OMS”) which opened in 2003. Mr. Windsor testified that the amount charged for the diagnostic services rendered by OMS was reasonable for the Broward County community based upon his personal knowledge in the industry. Mr. Windsor testified that he is familiar with what other MRI providers charge in the community for the CPT Code at issue and that amount ranges from $1,500.00 to $2,500.00. Mr. Windsor testified that he reviewed the GEO Zip Report provided by STATE FARM and based upon his review, the GEO Zip Report confirms that STATE FARM has received charges from other MRI providers ranging from $1,500.00 to approximately $2,500.00. Mr. Windsor also testified that various insurers who have not amended their policies pursuant to Section 627.736(5)a.2.f. have reimbursed the Plaintiff the full 80% of the amount charged for the CPT Codes at issue. There is no record evidence that the charged amount is unreasonable when compared to what other MRI centers charge as stated in the affidavit of Mr. Windsor. Based on the entire record there is no evidence to dispute the fact that Plaintiff’s charge is within the range of other specific MRI centers and significantly less than what hospitals charge for MRIs.
Plaintiff also relied upon the deposition testimony of STATE FARM corporate representative, Lisa Nazario, which was taken on July 14, 2015. Ms. Nazario testified that there was no evidence in the claims file that the claim’s processor considered usual and customary charges in payments accepted by OMS prior to making reimbursement in this case; there was no documentation noted in the file that STATE FARM considered reimbursement levels in the community prior to reimbursement in this case; and the only Federal and State fee schedules considered prior to making payment was Medicare. She further testified that pursuant to the Explanation of Review, the payment for this service was based solely upon 200 percent of the participating level of Medicare Part B fee schedule for the locale in which the services were rendered. As the record evidence clearly and unequivocally indicates, STATE FARM made a determination to reimburse the Plaintiff’s charges at 200 percent of Medicare Part B without any consideration of the “reasonableness” of the charge.
The Plaintiff seeks Summary Judgment that the price was reasonable. In Pan Am Diagnositc 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. 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, 409-410 (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 937-938; 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 Consumbers Insurance Co., 8 Fla. L. Weekly Supp. 505a, 506 (Sarasota Cty. Court 2001).
The court finds OMS met its burden of establishing the reasonableness of the MRI charges based on the affidavit of Mr. Windsor and the responses to Plaintiff’s discovery which explains why $1,900.00 is a reasonable charge for an MRI conducted in 2011 in Broward County (In this case, $3,800.00 as there were 2 MRIs conducted on the patient). Since the Plaintiff met its burden, the burden now shifts to the Defendant to establish a question of fact.
The Court finds STATE FARM did not meet its burden to establish a genuine issue of material fact as to the reasonableness of the charge for the Plaintiff’s MRIs. The affidavit of Dr. Michael Propper, Defendant’s expert, simply stated that “The amount charged for each respective MRI, $1,900.00, is an excessive charge for an MRI scan unless it is done by a licensed facility. . .The subject MRIs were not performed by such a facility and, therefore, the amount charged is not reasonable.” The court finds this statement fails to establish a genuine issue of material fact as to the reasonableness of Plaintiff’s charges and notes that Plaintiff is a fully licensed facility.
Defendant’s contention that because Plaintiff accepts lower amounts from cash paying patients, the charge of $1,900.00 is not reasonable. In Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment, Plaintiff filed the deposition transcript of Raymond Windsor in the case of Open Magnetic Scanning, Ltd. d/b/a Windsor Imaging a/a/o Venaal Gentles v. State Farm Mutual Automobile Insurance Company, Case No.: 13-6876 COWE 82 (Broward Cty. Court). Mr. Windsor testified that on occasion he accepts cash patients and that he may accept anywhere from $275.00 to $400.00. However, he stated that he does a very small cash business (averages less than one a month). Further, he stated that when he takes a cash payment, its typically a referring physician asking for a favor as the patient cannot afford his usual and customary fee of $1,900.00. In fact, he testified that there have been times, in hardship cases, where he has done MRIs for free.
The fact that Plaintiff accepts lower payments from cash paying patients on rare occasion has no bearing on the reasonableness of its charge and does not create a a genuine issue of material fact. In the case of Open Magnetic Scanning, Ltd. d/b/a Windsor Imaging a/a/o Saul Meme v. State Farm Mutual Automobile Insurance Company, 15-006675 COCE 52 (Broward Cty. Court) and Open Magnetic Scanning, Ltd. d/b/a Windsor Imaging a/a/o Roberta Mastraccio v. State Farm Mutual Automobile Insurance Company, Case No.: 13-007755 COWE 81 (Broward Cty. Court). Mr. Windsor, as he did in the deposition transcript filed in this case, testified regarding cash patients and what he accepted as payment. In both cases, Summary Judgment regarding the reasonableness of the charge was entered in favor of Plaintiff. The main inquiry is whether State Farm adopted the limitations for reimbursement allowed by Section 627.736(5)a.2.f., Florida Statutes, which would have allowed it to cap reimbursement based on 200% of the Medicare rate. An insurer must expressly and specifically incorporate the permissive statutory provisions into the policy in order to limit payment. See State Farm Mutual Automobile Insurance Company v. Pembroke Pines MRI, Inc. a/a/o Elias Cruz, 2015 WL 474535 (4th DCA 2015) [40 Fla. L. Weekly D1879a]. Defendant did not incorporate said provision into its policy.
The function of a summary judgment procedure is to determine if there is sufficient evidence to justify a trial upon the issues made by the pleadings, to expedite litigation, and to obviate expenses. Page v. Staley, 226 So.2d 129 (Fla. 4th DCA 1969). Where the material facts are not in dispute and the moving party is entitled to judgment as a matter of law, it is the Court’s duty to enter summary judgment. Castellano v. Raymor, 725 So.2d 1197 (Fla. 2nd DCA 1999) [24 Fla. L. Weekly D161b]. Defendant’s mere assertion that the Plaintiff’s charges were unreasonable is insufficient to create a genuine issue of material fact. See Slachter v. Abundio Inv. Co., 566 So.2d 348 (Fla. 3rd DCA 1990). A 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. Reflex, N.V.v. UMET Trust, 336 So.2d 473 (Fla. 3rd DCA 1976).
This Court finds no genuine issues of material fact regarding whether the Plaintiff’s charges for CPT Codes 72141 and 72148 were reasonable in amount and that the amount charged was reasonable, usual and customary in the Broward County community. Therefore it is,
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment as to reasonableness is hereby GRANTED and final judgment shall be entered in favor of the Plaintiff.
