23 Fla. L. Weekly Supp. 874a
Online Reference: FLWSUPP 2308MASTInsurance — 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 self-serving, conclusory, devoid of sufficient facts or data and based on inadmissible hearsay and lacks foundation for opinion that charge is unreasonable — Insurer that did not unambiguously elect in policy to limit reimbursement to permissive statutory fee schedule cannot rely on fee schedule to suggest that it reimbursed reasonable amount by making payment in accord with fee schedule — Fact that Medicare and private health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge
OPEN MAGNETIC SCANNING, LTD. d/b/a WINDSOR IMAGING, a/a/o Roberta Mastraccio, Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-007755 COWE 81. November 16, 2015. Jane D. Fishman, Judge. Counsel: Marc Finkelstein, Law Office of Marc Finkelstein, P.A., Fort Lauderdale, for Plaintiff. Lindsay Frenkel, Roig Lawyers, Deerfield Beach, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT ASTO THE 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 October 28, 2015. The issue being considered was whether the charge of $1,900.00 was reasonable for the cervical MRI without contrast (CPT Code 72141) performed in 2013. The amount in controversy is $580.13, which was calculated by taking the billed amount of $1,900.00, multiplying it by .80 (80%) and subtracting the payment of $939.87. After reviewing the pleadings, the affidavits, the depositions, the evidence, the Plaintiff’s Request for Admissions and 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 Final Summary Judgment in favor of Plaintiff as to the reasonableness of the price. The issue of medical necessity and related were not at issue as the Defendant stipulated to the relatedness and medical necessity of the scan.
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. Thus, reasonable is a range. In this case, Plaintiff timely submitted a bill to STATE FARM for CPT Code 72141 in the amount of $1,900.00 for the MRI in question which took place in 2013 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. 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.
On or about July 28, 2013, Plaintiff filed the instant claim for breach of contract to recover the improperly reduced personal injury protection benefits. On or about July 9, 2014, Defendant served its Answer to Plaintiff’s Complaint. The parties engaged in pretrial discovery. Pursuant to the parties agreement, 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 tits Notice of Filing the Deposition Transcript of STATE FARM’s corporate representative, Lisa Nazario. On October 12, 2015, Defendant filed its Notice of Filing the Deposition Transcript of Raymond Windsor. On October 13, 2015, Defendant filed its Notice of Filing the Affidavit of Dr. Edward Dauer. Plaintiff’s Motion for Final Summary Judgment was set for October 28, 2015.
The Court considered all arguments made by counsel in ruling on this matter and the arguments made in the Plaintiff’s motion.
On October 28, 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. Edward Dauer and the deposition transcript of Raymond Windsor 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 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.
The Defendant may not defeat a Motion for Summary Judgment by raising purely paper issues where the pleadings and evidentiary matter before the trial court show that the 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.
Plaintiff also relied upon the deposition testimony of STATE FARM’s corporate representative, Lisa Nazario, which was taken on April 28, 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. Had the legislature wanted courts to consider 200% of Medicare in an analysis of what is a reasonable charge for a medical procider it would have expressly provided for this provision as the legislature specifically addressed 200% of Medicare in §627.736(5)(a)(2). See Palms MRI Diagnostic Imaging Centers., Inc. a/a/o Deanna Sossin v. State Farm Mutual Auto Insurance, 21 Fla. L. Weekly Supp. 707b, (Fla. 17th Jud. Cir., April 17, 2014), Affd May 18, 2015, 23 Fla. L. Weekly Supp. 9b (Fla. App. 17th Cir., May 18, 2015).
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. Law 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 2013 in Broward County. 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 of the charges for the Plaintiff’s MRIs. The affidavit of Dr. Edward Dauer, Defendant’s expert stating the billed amounts were unreasonable was 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 amounts charged were unreasonable regarding the issue of reasonableness.
Dr. Dauer’s opinions are not relevant to the issues being litigated in this case and the basis for his opinions are without a foundation and cannot be authenticated. Furthermore, the basis for Dr. Dauer’s opinion does not take into account STATE FARM’s selection of the “reasonableness” methodology rather than the “payment limitation.”
STATE FARM does not believe it has any obligation under its policy to determine whether the provider’s bill is reasonable in price. Instead, STATE FARM erroneously relies upon the reimbursement limitations of 627.736(5)(a)(2)(f) to suggest that it reimbursed a reasonable amount to OMS. The relevant inquiry under 627.736(5)(a)1 is the reasonableness of the provider’s charge, not the reasonableness of STATE FARM’s reimbursement. If STATE FARM had elected to utilize the payment methodology found at 627.736(5)(a)2.f. then it’s reimbursement would be the relevant inquiry because under the provisions of 627.736(5)(a)2.f. the provider’s charge is irrelevant.
Because STATE FARM elected to pay the reasonable charges incurred, STATE FARM could have considered numerous factors in making that determination. The Court finds STATE FARM did not consider any of the permissible factors contained in 627.736(5)(a)(1) to determine if OMS’s charges were reasonable (Deposition transcript of Lisa Nazario). STATE FARM simply applied 200 percent of Medicare Part B and reimbursed the services at that rate, however, STATE FARM is not permitted to invoke the payment limitations of 627.736(5)(a)(2)(f) without complying with the provisions of F.S. 627.736(5)(a)(2)(f)’s payment limitation. See Geico v. Virtual Imaging Services, 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].
Further, the fact Plaintiff accepts payment from Medicare for those patients insured under Medicare does not suggest the amount Plaintiff charged Defendant was unreasonable. Nor does the fact that Plaintiff accepts payments from contracted insurers (HMOs and PPOs) on behalf of those patients insured by HMOs and PPOs. Finding the Plaintiff’s charge is unreasonable based on what Medicare and private insurance allow is unreasonable based on what Medicare and private insurance would allow would require the improper stacking of inferences as Medicare pays what the government set forth without any regard to what is a reasonable amount for a particulars service. While this court will draw all possible reasonable inferences of material fact in favor of 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.
Finally, STATE FARM’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 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 law in 1965 and as yet there have been few, if any, judicial decisions defining it 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.”
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. Raynor, 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 charge for CPT Codes 72141 was 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.
