24 Fla. L. Weekly Supp. 161a
Online Reference: FLWSUPP 2402PIERInsurance — Personal injury protection — Coverage — Medical expenses — Medical provider’s motion for summary judgment on issue of relatedness of treatment is denied where affidavit of insurer’s expert, stating that insured was injured in previous motor vehicle accident and only suffered minor sprains in subject accident that were not ameliorated by provider’s passive treatment, demonstrates existence of genuine disputed issue of material fact regarding relatedness of treatment
AUGUST CHIROPRACTIC, INC d/b/a TRAUMA & REHAB ASSOCIATES, a/a/o MARIE PIERRE, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 08-1447 CC 23 (06). January 15, 2016. Spencer Multack, Judge. Counsel: Kenneth Dorchak, for Plaintiff. Jacqueline Whittingham, House Counsel for United Automobile Insurance Company, Miami Gardens, for Defendant.
ORDER DENYING SUMMARY JUDGMENTREGARDING RELATEDNESS (POST April 26, 2007)
THIS CAUSE came before the Court on the “Plaintiff’s Motion for Partial Summary Judgment regarding Relatedness,” pursuant to Rule 1.510 Florida Rules of Civil Procedure. On November 9, 2015, this Court held a hearing where it received evidence and argument from both Defendant and Plaintiff. The Court has further reviewed the court file, analyzed the arguments, and weighed the evidence received which serves as the basis of this order.Facts
Plaintiff filed an amended Complaint for damages for the Defendant’s failure to pay its medical bills under F.S. 627.736, the “Florida Motor Vehicle No-Fault Law.” On April 7, 2009, the predecessor judge granted the Plaintiff’s Motion for Summary Judgment awarding benefits in the amount of $4350.00 for services rendered between March 8, 2007 and April 26, 2007, and orthopedic examinations on June 18, 2007 and July 10, 2007 in the amount of $250.00 each. The remaining issues as ruled upon on by the court on April 7, 2009 is the medical necessity and relatedness of treatment rendered after April 26, 2007.
On June 9, 2015, the Plaintiff renewed its Motion for Summary Judgement on the issue of relatedness based upon the authority in Sevila Pressley Weston v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 306b (11th Cir. App. 2013). The Court has reviewed the submitted authority, Plaintiff’s affidavit of Dr. Craig August (9/15/2008), and Defendant’s affidavits of Drs. Peter Millheiser (11/3/2015), Michael Mansdorf (12/3/2008), and Bradley Simon (12/12/2008).Sevila Pressley Weston v. United Auto Ins. Co.
Similar to the case sub judice, Sevila Pressley Weston was suing United Auto Insurance Company for unpaid medical benefits, which ultimately resulted in a trial. At the trial, after the Plaintiff presented evidence of the necessity and reasonableness of the patient’s medical treatment, the Defendant presented evidence of the deficient record keeping of the treating physician. The Defendant opined that based upon the poor record keeping, the medical treatment was not reasonable, related, or necessary to the claimed crash and subsequent injuries to Weston, a prerequisite for the payment of PIP benefits. At the close of the evidence, the Plaintiff moved for directed verdict, which was denied based upon the Defendant’s expert’s testimony regarding the faulty record keeping,
On review, the 11th Judicial Circuit sitting in its appellate capacity determined that testimony of deficient record keeping was insufficient to defeat a motion for directed verdict, citing the persuasive authority found in Affiliated Healthcare Ctr. Inc. a/a/o Francis Doladson, as guardian of Utiva-Turner, [v. United automobile Insurance Co.], 18 Fla. L. Weekly Supp. 758a (Fla. 11th Jud. Cir. June 22, 2011)(reversing jury verdict that found that the medical treatment was not necessary based upon United Auto’s attack on the medical recordkeeping); Ali v. McCarthy, 17 Fla. L. Weekly Supp. 661a (Seminole County Court, May 25, 2010)(finding that medical recordkeeping “does not go to the efficacy of treatment, causal connection or reasonableness of charge.”).
The Court finds the case sub judice to be distinguishable from Weston. Primarily, deficient record keeping is not an issue in this case. The expert testimony provided from the Defendant does not address record keeping as the basis to refute the relatedness and necessity of Pierre’s treatment. Rather the affidavits attack the duration and necessity of the treatment provided. Of the three affidavits, the Court finds Dr. Millheiser’s to be the most persuasive on the issues of relatedness, as he establishes a factual basis for his opinion1 that treatment beyond April 26, 2007 was unrelated and unnecessary. The factual basis presented by Millheiser states that Pierre was involved in a prior motor vehicle accident in July 2006, suffered immediate neck pain, and was seen by a doctor only a few months prior to the present motor vehicle accident of February 28, 2007. Dr. Millheiser also opined that as a result of the current motor vehicle accident, Pierre sustained simple sprains and delayed treatment for over one week, which should not have taken more than four to six weeks to heal. Additionally, the services rendered by the Plaintiff were passive and provided no significant improvement to the Pierre’s condition, which was evidenced by no significant changes in her symptoms.
Furthermore, the Court finds that Dr. Millheiser’s affidavit complies with F.S. 90.702 and Daubert, and would be admissible at trial.Conclusion
In sum, the evidence presented by Defendant conflicts with the evidence presented by the Plaintiff and demonstrates the existence of a genuine issue of material fact regarding relatedness of the Plaintiff’s treatment. The court must “view all of the facts and inferences in the light most favorable to the nonmoving party.” Stroud by Schuette v. Strawn, 675 So. 2d 646 (Fla. 2d DCA 1996) [21 Fla. L. Weekly D1394a], Moore v. Morris, 475 So. 2d 666 (Fla. 1985). “If the existence of such issues or the possibility of their existence is reflected in the record, or the record even raises the slightest doubt in this respect, the summary judgment must be denied”.
Based on the above authority and evidence submitted by the parties, the Plaintiff’s motion for summary judgment as to relatedness after April 26, 2007, is DENIED.
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1See Affidavit of Peter Millheiser, M.D. paragraphs13, 14, 15.
