23 Fla. L. Weekly Supp. 362a

Online Reference: FLWSUPP 2304YARTInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Medical provider failed to meet its burden of proof for summary judgment on reasonableness of charges where provider’s expert stated no opinion as to reasonableness of charges, and provider failed to file authenticated copy of medical bill in record — Where PIP policy provides that insurer may consider “various federal and state medical fee schedules” to determine whether charge is reasonable, insurer and its experts may consider Medicare reimbursement rates in determining reasonableness of charges

VIRTUAL IMAGING SERVICES, INC. a/a/o MARIBEL YARTU, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 10-25998 SP 23 4. July 20, 2015. Jason Emilios Dimitris, Judge. Counsel: Thomas E. Flanagan, III, The Greenspan Law Firm, Boca Raton, for Plaintiff. Katherine S. Moon, Conroy Simberg, Miami, for Defendant.

ORDER ON PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT

THIS CAUSE comes before the Court on Plaintiff’s Motion for Partial Summary Judgment, heard on March 20, 2015. The Court, having reviewed the file, heard argument of counsel, and being otherwise fully advised on the premises thereof, makes the following findings of fact and conclusions of law:UNDISPUTED FACTS

Plaintiff, Virtual Imaging Services, Inc., (“Plaintiff”) brought the instant action for Personal Injury Protection (“PIP”) benefits for charges in the amount of $4,500.00 for diagnostic services purportedly rendered to the insured, Maribel Yartu, on or about January 15, 2010, following a motor vehicle accident on the same day. Plaintiff moved for final summary judgment on relatedness, medical necessity and reasonableness. However, at the time of the hearing, Plaintiff only proceeded with its motion as to the reasonableness of the submitted charges. As such, the Court will only address reasonableness herein.

In support of its motion, Plaintiff filed the two-page affidavit of the referring physician, Dr. Mark E. Baum, D.C., and the deposition transcript of State Farm’s litigation adjuster, Harold Ly.

In opposition to Plaintiff’s Motion for Summary Judgment, State Farm filed the deposition transcript of Dr. Mark E. Baum, D.C., and the affidavits of chiropractic physician, Dr. Michael W. Mathesie, D.C.; actuary, Darrell Spell, and State Farm’s litigation adjuster, Asher Postell.

ANALYSIS

A moving party is entitled to final summary judgment as a matter of law when there are no genuine issues of material fact. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a] (no factual disputes existed and dispute was a question of law); Holl v. Talcott, 191 So. 2d 40 (Fla. 1966).

In filing its Motion for Summary Judgment, Plaintiff argued that there were no genuine issues of material fact with regard to relatedness, medical necessity and reasonableness. However, as set forth above, Plaintiff only proceeded with hearing on the portion of its motion pertaining to the reasonableness of the charges.

Plaintiff filed the affidavit of the referring physician, Dr. Mark E. Baum, D.C., wherein Dr. Baum discussed charges for medical services, but did not address the charges at issue in the instant lawsuit. Dr. Baum stated, “All the charges made by my office are reasonable based on my knowledge and experience” (emphasis added). However, Dr. Baum’s office is not Plaintiff’s office. Moreover, Dr. Baum’s affidavit does not indicate whether he even reviewed the Plaintiff’s charges in this case. The bills at issue are not attached to the affidavit, nor are the submitted amounts for the services discussed by Dr. Baum.

This Court then considered additional testimony by Dr. Baum, in the form of his deposition, filed by the Defendant in opposition to Plaintiff’s Motion for Summary Judgment. Plaintiff argued that Dr. Baum testified to the reasonableness of the diagnostic charges at issue in this case during his deposition. Plaintiff relied on the testimony at page 18 of the deposition:

Q. Would you be surprised to note that the x-rays performed were all billed at a minimum of $750 a piece?

A. Would I be surprised?

Q. As far as the priced bill?

A. No.

Q. Do you have an opinion on the pricing for those x-rays?

A. Well, if I compare it to Baptist Hospital, they are probably about the same.

Deposition of Dr. Mark E. Baum, January 24, 2014, page 18, lines 12-20.

Plaintiff asserted the above testimony is Dr. Baum’s opinion that the Plaintiff’s charges are reasonable because they are similar to the usual and customary charges of another provider in the community, i.e., Baptist Hospital. However, Dr. Baum never stated that the charges of either Plaintiff or Baptist Hospital are reasonable, and to infer such would violate well-established law regarding summary judgment motions. “The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Moore v. Morris, 475 So. 2d 666 (Fla. 1985). See also Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977); Holl v. Talcott, 191 So. 2d 40 (Fla. 1966), cert. denied, 232 So. 2d 191 (Fla. 1969). Without even drawing the inferences here in favor of the non-moving party, it is clear that Dr. Baum stated no opinion as to the reasonableness of Plaintiff’s charges.

Plaintiff also filed the deposition transcript of State Farm litigation adjuster, Harold Ly. Although Plaintiff questioned Mr. Ly about the bills during said deposition and attached a copy of the bill, Mr. Ly was not asked to authenticate the bill as part of State Farm’s claim file. Mr. Ly was not asked if the documents were compiled at or near the time of the corresponding events, if the documents were created by a person with knowledge or information transmitted by a person with knowledge, if the documents were kept in the course of State Farm’s regularly conducted business activity, or if it was part of State Farm’s regular business practice to compile said documents. See Fla. Stat. §90.803(6). Despite lack of authentication, Plaintiff argued that the bill was filed properly in the record in support of its summary judgment motion. As part of its prima facie burden on the instant motion, Plaintiff needed to have properly authenticated the bill at issue in this case. Plaintiff failed to do so.

Plaintiff relied on the interpretation of AJ v. State, 677 So. 2d 935 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e], in the Broward County court decision of Pan Am Diagnostic Services, Inc. a/a/o Fritz Telusma v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (17th Jud. Cir., October 1, 2013) (“Telusma”). In Telusma, the Honorable Judge Robert W. Lee interpreted AJ v. State to hold that a bill for medical services is prima facie evidence of reasonableness of the charges. Id. However, AJ v. State specifically states:

Liability for a medical expense usually arises because of a contract implied in fact — services are rendered with the expectation that the patient will pay a reasonable amount in return. Nursing Care Services, Inc. v. Dobos, 380 So. 2d 516, 518 (Fla. 4th DCA 1980); Symon v. J. Rolfe Davis, Inc., 245 So. 2d 278 (Fla. 4th DCA), cert. denied, 249 So. 2d 36 (Fla. 1971); 3 Corbin on Contracts §§ 562, 567 (1960). Fees are not typically discussed at the time of treatment. The patient’s obligation is not to pay whatever the provider demands, but only a reasonable amount. A medical bill constitutes the provider’s opinion of a reasonable charge for the services and an offer to settle for that amount. The patient is not legally bound by the provider’s estimate; the patient may contest reasonableness by counteroffering to pay a lower amount.

677 So. 2d at 937 (emphasis added).

AJ v. State does not stand for the proposition that a medical bill is prima facie evidence of the reasonableness of a provider’s charge, but rather for the proposition that the bill is merely evidence of “the provider’s opinion of a reasonable charge.” Id. (emphasis added).

Regardless of the foregoing, an analysis of the application of AJ v. State and Telusma to the instant case places the cart before the horse. Even if this Court were to interpret AJ v. State consistently with the Telusma Court, Plaintiff still would not be able to apply AJ v. State to the case at bar because Plaintiff failed to file an authenticated copy of the bill into the record. Dr. Baum did not and could not authenticate a copy of the bill as a business record of the Plaintiff. Plaintiff could have authenticated the bill in the deposition of Defendant’s litigation adjuster as part of its claim file and business records, but at no time during the deposition did Plaintiff counsel ask Defendant’s litigation adjuster to authenticate the medical bill. Alternatively, Plaintiff could have filed its own affidavit to authenticate a copy of the bill. Plaintiff failed to do so. This Court cannot consider the bill as evidence of reasonableness as it is not properly filed in the record. Even by the lax interpretation presented in Telusma, Plaintiff has failed to meet its burden of proof for summary judgment on the reasonableness of the charges at issue and, consequently, failed to shift the burden to Defendant.

Plaintiff filed no other evidence in support of its motion, but presented further argument with regard to the reasonableness of the charges. Relying on Hialeah Medical Assoc., Inc., a/a/o Ana Lexcano v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b (11th Jud. Cir. App., March 7, 2014) (“Lexcano”), Plaintiff argued that Defendant cannot rely on Medicare reimbursements in any way to dispute the reasonableness of Plaintiff’s charges. Plaintiff argued that Lexcano establishes that Medicare reimbursement rates are irrelevant in PIP cases if the policy at issue does not elect the permissive fee schedule of Fla. Stat. §627.736(5)(a)2., and further, that Defendant cannot utilize Medicare in its evaluation of the reasonableness of the charges. This Court disagrees with Plaintiff’s interpretation of Lexcano and notes the significant differences between the facts of Lexcano and the instant case.

In Lexcano, the insurer limited reimbursement of the charges for medical services and treatment rendered in 2008 to 200% of the Medicare Part B fee schedule pursuant to the permissive fee schedule of Fla. Stat. § 627.736(5)(a)2. (2008) (“the permissive fee schedule”), but did so under a 2007 policy of insurance. Under the policy of insurance in Lexcano, the 2007 version of the No-Fault Statute governed, but the insurer tried to apply the 2008 version retroactively. Accordingly, the insurer in Lexcano could not rely on the permissive fee schedule of the 2008 No-Fault Statute because the permissive fee schedule did not exist under the 2007 version of the No-Fault Statute. Id. See also Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a].

The facts herein differ from Lexcano. Defendant did not contend it elected the permissive fee schedule in its policy language. Rather, the policy language mirrors the language of Fla. Stat. §627.736(5)(a)1. (2009). State Farm’s policy of insurance provides, in pertinent part:

To determine whether a charge is reasonable we may consider usual and customary charges and payments accepted by the provider, reimbursement levels in the community and various federal and state medical fee schedulesapplicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment or supply.

State Farm Amendatory Endorsement 6910.3, p. 4 (emphasis added).

Defendant argued that this policy language allowed it to consider Medicare reimbursements in its determination of a reasonable charge. This Court agrees. Although Defendant did not elect the permissive fee schedule in its policy and, accordingly, cannot unilaterally apply permissive fee schedule limitations to medical bills, Defendant’s policy language is sufficient to allow it to consider Medicare reimbursement rates and the permissive fee schedule in evaluating the reasonableness of Plaintiff’s charges. This is consistent with Geico General Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a], in which the Supreme Court took careful measure to state, “[W]e do not conclude that payment under section 627.736(5)(a)2. could never satisfy the PIP statute’s basic ‘reasonable expenses’ coverage mandate, set forth in section 627.736(1).” Id. at 157. The Court further stated, “We emphasize that we do not conclude that limited reimbursement pursuant to section 627.736(5)(a)2. would never satisfy this reasonable medical expenses coverage mandate.” Id. at 157, n. 8.

Relying on Brenda Lezama v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 628b (11th Jud. Cir. App., April 28, 2014), rehearing denied, 22 Fla. L. Weekly Supp. 515a (11th Jud. Cir. App., July 16, 2014) (“Lezama”), Defendant also argued the relevance of Medicare in PIP because its experts, Dr. Mathesie and Mr. Spell, also considered the Medicare fee schedule reimbursement amounts in their evaluation of the reasonableness of Plaintiff’s charges. In Lezama, the Appellate Court ruled that the trial court did not abuse its discretion in allowing the insurer’s expert to testify on the reasonableness of the charges where its expert relied on Medicare, Medicaid or managed care rates in its evaluation. Appellant in Lezama, as well as Plaintiff in the instant case, took the position that Medicare is irrelevant in PIP cases. However, the Lezama Court permitted the defense expert’s testimony “as it was within the range of his expertise.” 21 Fla. L. Weekly Supp. 628b. Where the insurer’s expert relied on Medicare and such testimony is “within the range of his expertise,” Medicare fee schedules may be considered to determine whether or not a charge is reasonable. Id. In the instant case, Defendant’s experts and litigation adjusters similarly relied on Medicare in their evaluation of Plaintiff’s charges. Accordingly, Medicare reimbursement rates are relevant and may be considered in determining the reasonableness of Plaintiff’s charges. However, this Court need not evaluate the Defendant’s evidence further as Plaintiff has failed to meet its prima facie burden burden of proof.CONCLUSION

For the reasons set forth herein, the Court finds that there remain genuine issues of material fact regarding the reasonableness of the charges for the medical services at issue. Accordingly, it is ORDERED and ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment is hereby DENIED.