24 Fla. L. Weekly Supp. 370a
Online Reference: FLWSUPP 2405BAJOInsurance — 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 medical charges where affidavit is conclusory and does not provide opinion that is derived by scientific method
ADVANCED CHIROPRACTIC & MEDICAL CENTER, CORP., a/a/o Jean Bajoo, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 13-012665. Division 54. July 1, 2016. Stephen J. Zaccor, Judge. Counsel: K. Eikosidekas, for Plaintiff. M. Udell, for Defendant.
ORDER GRANTING PLAINTIFF’S AMENDEDMOTION FOR FINAL SUMMARY JUDGMENT
This cause came before the court on June 24, 2016 on Plaintiff’s Amended Motion for Summary Judgment relative to whether charges for chiropractic services were reasonable. After reviewing the pleadings, the evidence, 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 reasonableness of the charge.ANALYSIS AND FINDINGS OF FACT
Advanced Chiropractic (hereinafter the Plaintiff), sued State Farm Mutual Automobile Insurance Company (hereinafter the Defendant) for breach of a contract of personal injury protection benefits under the Florida’s No Fault law. It is undisputed the Defendant’s policy requires the Defendant to pay 80% of all reasonable expenses and that they reimbursed the Plaintiff based upon 200% of the Participating Level of Medicare Part B. The amount tendered by the Defendant was not accepted as payment in full by the Plaintiff who, after serving a demand letter, sued the Defendant 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.
The Plaintiff moves for Summary Judgment based on an affidavit of Pam McDole, a billing clerk, Corporate Representative, and legal liaison who maintains the Plaintiff’s charges are reasonable. She included a billing ledger and the CMS 1500 detailing the charges at issue.
Summary judgment is appropriate only when “there is no genuine issue as to any material fact. Mack v. Broward Cnty., 900 So. 2d 718, 719 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1078a]. Once the moving party carries its burden that there is no genuine issue of material fact, the burden shifts to the nonmoving party. Id.
The Plaintiff has met its burden in this case. Ms. McDole’s affidavit establishes a prima facie case that the Plaintiff’s charges are reasonable.
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).
Coastal Radiology, LLC (a/a/o Jenesis Ramirez) v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 167a (Fla. Broward Cty. Ct. 2014). The Plaintiff having met its burden, it now shifts to the Defendant to show the existence of an issue as to a material fact.
In opposition to the Plaintiff’s motion the Defendant argues the reasonableness of a charge is a question for the jury. The Defense has not provided, nor is this court aware of, any controlling authority to support their claim that reasonableness of a charge is always a jury question. Multiple county courts in Broward have granted summary judgment as to reasonableness of a charge and have not been reversed. In United Automobile Insurance Company v. Hallandale Open MRI, LLC, a/a/o Antonette Williams 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. App. Court 2013) Judge DeLuca granted the plaintiff’s motion for summary judgment as to the reasonableness of the charge of a lumbar MRI. The Circuit Court acting in its appellate capacity affirmed the lower court and the Fourth DCA declined certiorari. 39 Fla. L. Weekly D1883c (2014). In doing so, the Fourth District opined “[t]he circuit court’s affirmance could have been based on the trial court’s outright rejection of the affidavit offered by petitioner.” Id. It follows then, by rejecting the petitoner’s/defendant’s evidence, the trial court found the respondent’s/plaintiff’s evidence established a prima facie case of reasonableness and summary judgment was appropriate. Clearly, the District Court found no error in the trial court granting summary judgment as to reasonableness.
More recently, in State Farm Mutual Automobile Ins. Co. v. Figler Family Chiropractic, P.A. a/a/o Linda Manners, 41 Fla. L. Weekly D805b, the Fourth District affirmed the trial court’s order granting summary judgment for a medical provider in the PIP context.
In further opposition to the Plaintiff’s motion the Defendant relies on an affidavit from Dr. Michael Propper who opines the Plaintiff’s charges are not reasonable. As Dr. Propper is providing his expert opinion on the issue of reasonableness it must withstand the scrutiny Section 90.702, Florida Statutes (2013), which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). This Court finds Dr. Propper, an orthopedist by trade and an owner of medical facilities, is qualified by knowledge, experience, and education in the field of Orthopedics and charges for Orthopedic services. Whether he can give expert testimony regarding the reasonableness of the charges turns on whether sub-sections (1), (2), and (3) are satisfied. More specifically, “the subject of an expert’s testimony must be ‘scientific knowledge.’ ” Perez v. Bell South Telecommunications, Inc., 138 So.3d 492, 498 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b], quoting Daubert at 590. “In order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method.” Id.
Preliminarily, Dr. Propper does not address the charges for CPT Code 97112. There being no evidence to rebut the Plaintiff’s prima facie case for that Code, summary judgment is granted as to CPT Code 97112.
This Court finds the Defendant has not established Dr. Proppers’s testimony satisfies Section 90.702 Florida Statutes (2014) or Daubert and its progeny. Absent from his affidavit is evidence of sufficient facts or data, reliable principles and methods, or “scientific knowledge.” Dr. Propper’s affidavit is based primarily upon his personal experience and he compares the charges PIP providers charge to those charges by Medicare, Medicaid, Worker’s Compensation and various health insurers. His affidavit is conclusory and makes legal conclusions, but does not provide an opinion that is “derived by the scientific method.” Perez at 498. This is not the sort of testimony which qualifies under Section 90.702 Florida Statutes (2013). See Giaimo v. Florida Autosport, Inc., 154 So.3d 385 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D2484a]. To the contrary, this is more akin to the “pure opinion” testimony which has been rejected by the legislature. “Perez at 497. Therefore, Dr. Propper’s testimony cannot be considered and does not create the existence of a material fact in issue as to the reasonableness of the charges.
Accordingly, the Plaintiff’s Amended Motion for Summary Judgment is hereby GRANTED.
