24 Fla. L. Weekly Supp. 851a

Online Reference: FLWSUPP 2410RRODInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness, relatedness and necessity of x-ray charges where basis of affiant’s opinion is deficiencies in medical record-keeping, and affiant offers only conclusory opinion that charges were not reasonable — No merit to argument that summary judgment is precluded by provider’s failure to produce actual x-ray films where x-ray reports are in medical record, and production of actual x-ray films is not condition of coverage under PIP statute

B&A DIAGNOSTIC, INC., a/a/o Ricardo Rodriguez, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 10-08690 SP 25. July 16, 2013. Gloria Gonzalez-Meyer, Judge. Counsel: Majid Vossoughi, Majid Vossoughi, P.A., Miami, for Plaintiff. Maury L. Udell, Beighley, Myrick & Udell, P.A., Miami, for Defendant.

[Affirmed (PCA): Progressive American Ins. Co. v. B&A Diagnostic Inc. (11th Jud. Cir., Appellate, Case No. 13-353-AP, 4-16-2015)]

ORDER GRANTING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT

THIS CAUSE initially came before the Court on April 30, 2013, on Plaintiff’s Motion for Summary Judgment as to Reasonable, Related & Medically Necessary Treatment and Plaintiff’s Motion for Entry of Final Judgment. The continuation of the hearing was subsequently set for hearing, at the Court’s request, on June 26, 2013 at 10:00 a.m., as the court ran out of time at the initial hearing.

The Court having now concluded, and the Court having reviewed the motion for summary judgment with supporting evidence, Progressive’s expert’s affidavit in opposition, the case law presented by the parties and the Court having heard argument from counsel and being otherwise fully advised in the premises, the Court hereby GRANTS the Plaintiff’s Motion for Summary Judgment and makes the following factual findings and conclusions of law.

FACTUAL FINDINGS

The Plaintiff, as the assignee of Ricardo Rodriguez, filed suit for Personal Injury Protection (PIP) benefits on September 17, 2010 alleging breach of contract by Progressive for its failure to pay PIP benefits for diagnostic services (X-Rays) performed by the Plaintiff on April 22, 2010.

On October 26, 2011, Plaintiff filed the Affidavit of Robert Frankl, D.C., who opines that the services provided by the Plaintiff were reasonable, related, and medically necessary to the April 20, 2010, loss alleged within Plaintiff’s Complaint.

Dr. Frankl’s affidavit opines that the x-rays of the cervical, thoracic, and lumbar regions of the body as well as right knee performed by the Plaintiff were reasonable, related, and medically necessary. Specifically, Dr. Frankl opines:

5. In my expert medical opinion, it is reasonable and customary for an individual involved in a car accident to seek medical attention if the person complains of pain and discomfort following the accident. It is also reasonable and necessary to order x-rays of areas of complaint to determine if osseous pathology exists in addition to fractures, dislocations, vertebral subluxations and non-spinal joint displacement.

6. In this case, Mr. Rodriguez sought treatment for his injuries following an automobile accident on April 20, 2010. Mr. Rodriguez had x-rays performed on April 22, 2010 on his cervical, thoracic, and lumbosacral regions of the body as well as his right knee for his injuries following an automobile accident on April 20, 2010. It is my expert opinion that the x-rays performed in this case were related to the accident in question.

7. It is also my expert opinion that the x-rays performed to the areas of complaint (cervical, thoracic, and lumbosacral regions of the body as well as his right knee) in this case were reasonable and medically necessary. As noted above, x-rays inform the treating doctor whether osseous pathology exists and whether Mr. Rodribuez had fractures, dislocations, vertebral subluxations and non-spinal joint displacement based on the injuries he had sustained in the automobile accident on April 20, 2010).

(Frankl Affidavit at ¶¶5-7).

Thereafter, the Plaintiff filed its Motion for Summary Judgment and coordinated and set the hearing on same for March 13, 2013 @ 10:00 a.m.

The Plaintiff also filed its Motion for Entry of Final Judgment contending that all affirmative defenses had been disposed of by this Court. Plaintiff further alleged that, on the sole remaining issues of reasonable, related, and medical necessity, as of the date of the motion the Defendant had not served any documents creating a material issue of fact thereby entitling the Plaintiff to judgment in its favor. A hearing on that motion was also coordinated and noticed for March 13, 2013 @ 10:00 a.m.

On March 12, 2013, the Court had to cancel both hearings and notified both parties of the cancellation. As of March 13, 2013, the Defendant had not served or filed any expert affidavits in opposition to Plaintiff’s motion for summary judgment or motion for entry of final judgment.

On March 13, 2013, the court re-set the Plaintiff’s motions for April 30, 2013, at 2:00 p.m. and the Plaintiff served the re-notice of those hearings.

On April 26, 2013; that is, subsequent to the originally scheduled hearing date for the summary judgment and final judgment motions, (March 13, 2013) and some two and half years after suit, the Defendant filed the Affidavit of Gene E. Jenkins, Jr., D.C. The record does not reflect whether Dr. Jenkins prepared any peer review report for the Defendant.

Dr. Jenkins’s affidavit lists the documents he reviewed, including inter alia X-Ray reports, dated 4/22/2010 with 2 views of the right knee, 4 views of the cervical spine, 2 views of the thoracic spine, and 2 views of the lumbosacral spine.

In pertinent part, after listing the documents he reviewed, Dr. Jenkins opines:

4. The medical file purports to show that Mr. Rodriguez sought treatment for injuries he allegedly sustained during an automobile accident on April 20, 2010. As part of that treatment, x-rays were allegedly taken of Mr. Rodriguez’s cervical, thoracic, and lumbosacral spine, as well as his right knee. It is my understanding that the Plaintiff has failed to provide the actual x-ray films allegedly rendered to the claimant in this case. Florida Administrative Code 64B8-10.002(3) on keeping medical records requires all medical records to be kept for 5 years. The “General Records Schedule GS4 for Public Hospitals, Health Care Facilities and Medical Providers” established by the Florida Department of State requires x-ray films to be retained for a minimum of seven (7) years.

5. My initial examination of the medical file pertaining to Ricardo Rodriguez and the treatment rendered by Noguel Rehabilitation Center and B&A Diagnostic, inc., indicates that there was nothing that documents the rationale for the x-rays billed and allegedly rendered by B&A Diagnostic, Inc.

6. Furthermore, there is nothing from my review of the medical records and the file to indicate that Dr. Hochfelder even reviewed the x-rays, or x-ray reports. Therefore, the alleged x-rays taken by Plaintiff did not play any part in the diagnosis or treatment of the patient which is not in accordance with generally accepted standards of medical practice.

7. Upon my present review of the medical file and based upon a reasonable degree of medical probability, the medical services rendered, and medical bills submitted by B&A Diagnostic Center, Inc. as they relate to Ricardo Rodriguez, were not medically necessary, reasonable or related to the alleged motor vehicle accident.

8. Additionally, it appears that on the initial examination date of 4/22/10, Dr. Hochfelder did not perform the examination, but it was instead performed by a certified chiropractic assistant (“CCPA”). If Dr. Hochfelder was not present for the initial examination, or had reviewed the examination at the time of the initial date of service, it is my opinion that the subsequent treatment, including the x-rays billed in this case are not reasonable, related or medically necessary.

(Jenkins Affidavit at ¶¶ 4-8).

The Plaintiff argues that Dr. Jenkins’s affidavit is legally insufficient on the bases that it is conclusory and lacking in any factual basis. Additionally, the Plaintiff argues that diagnostic services are presumptively medically necessary unless there is competent evidence in the record to demonstrate otherwise, relying principally on Banyas v. American Mut. Fire Ins. Co., 359 So.2d 506 (Fla. 1st DCA 1978).

The Defendant argues that Dr. Frankl’s affidavit is conclusory and that it is entitled to a Valcin presumption if the Plaintiff has destroyed the x-ray films. The Defendant argues that it should be able to view the actual x-rays for the quality of the x-rays and further suggested, at the summary judgment hearing, that it should be able to prove that, in fact, no x-rays were taken at all. However, the Court specifically notes that no fraud claim was ever alleged nor is there anything in the record to suggest that X-rays were never taken. In fact, both experts relied upon X-ray reports that were contained within the medical records and which contain the radiologist’s findings as to the X-rays that he read.Summary Judgment Standard

Florida Rule of Civil Procedure 1.510 holds that judgment “shall be rendered forthwith if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FIa.R.Civ.P. 1.510.

The movant in a summary judgment proceeding has the initial burden of establishing its prima facia case, and once that burden is satisfied the burden shifts to the non-moving party to present evidence that establishes genuine issues of material fact to preclude summary judgment. See Latour v. Stromberg-Carlson Leasing, 335 So.2d 600 (Fla. 3rd DCA 1976).

The Plaintiff’s burden of proof in establishing a prima facia case to recover PIP benefits requires proof that the plaintiff’s medical services are related to the subject accident, medically necessary and that the bills for said services are reasonable. See Derius v. Allstate Indemnity Co., 723 So. 2d. 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a]. Expert medical testimony is required to prove whether a Plaintiff has suffered an injury for purposes of Florida’s no-fault insurance law and whether medical treatment rendered therefor is medically necessary. See Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1992).The Affidavits

The law is well settled that affidavits in support of or in opposition to motions for summary judgments that reach pure conclusions without setting forth any factual basis supporting the conclusions are insufficient to create disputed factual issues. See Jones v. Florida Workers’ Compensation JUA, 793 So.2d 978 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D356c]; Heitmeyer v. Sasser, 664 So.2d 358 (Fla. 4th DCA 1995) [21 Fla. L. Weekly D39a]; TSI Southeast, Inc. v. Royals, 588 So.2d 309 (Fla. 1st DCA 1991); North Broward Hospital District v. Royster, 544 So.2d 1131 (Fla. 4th DCA 1989); Stolzenberg v. Forte Towers South, Inc., 430 So.2d 558 (Fla. 3d DCA 1983); Pino v. Lopez, 361 So.2d 192 (Fla. 3d DCA 1978); United Auto. Ins. Co., v. All Care Health & Wellness (Palila Frederic), 18 Fla. L. Weekly Supp. 19a (Fla. 11th Jud. Cir., October 21, 2010)(peer review report and affidavit that contain little more than conclusory statements cannot create genuine issue of material fact in opposition to motion for summary judgment); State Farm Mut. Auto. Ins. Co. v. HYMA Medical Center, Inc., (a/a/o Jorge Pino, et al.), 20 Fla. L. Weekly Supp. 120a (Fla. 11th Jud. Cir., October 18, 2012)(no abuse of discretion in declining to consider peer review report that contains mere conclusions as to reasonableness, relatedness and necessity of treatment and does not create factual issues precluding summary judgment).

After consideration of the admissible summary judgment evidence in this case, this Court finds that the Plaintiff has met its initial burden of proof as to the medical necessity of its treatment, relatedness to the loss alleged within the Complaint, and reasonableness of its charges. The deposition testimony of Ricardo Rodriguez confirms his involvement in a motor vehicle accident giving rise to the instant claim. Mr. Rodriguez further testifies that he sustained injuries to his knee, neck and back as a result of the accident and the existence of pain post accident in said areas. Mr. Rodriguez denies involvement in any other motor vehicle accidents.

The Plaintiff s expert, Dr. Frankl, has opines that it is reasonable and customary for an individual in a car accident to seek medical attention if the person complains of pain and discomfort following the accident. Robert Frankl, D.C. further testifies that the x-rays performed to the cervical, thoracic and lumbar regions of the body as well as Mr. Rodriguez’s right knee were reasonable and medically necessary and related to the accident of April 20, 2010. Dr. Frankl opines that it is reasonable and necessary to order x-rays of the areas of complaint “to determine is osseous pathology exists in addition to fractures, dislocations, vertebral subluxations and non-spinal joint displacement.” Finally, Frankl opines as to reasonableness of the charges for the diagnostic treatment and/or services performed by the Plaintiff.

The Court finds that Dr. Frankl’s affidavit is legally sufficient in that the factual basis of his opinions is contained within his affidavit. He specifically opines that x-rays were medically necessary for the symptoms with which Mr. Rodriguez presented and are medically necessary when a car accident victim complains of pain and discomfort. He opines that it is reasonable and necessary “to determine if osseous pathology exists in addition to fracture, dislocation, vertebral subluxations and non-spinal joint displacement.” He further opines that x-rays inform the treating physician whether osseous pathology exists and whether the patient has suffered any fractures or dislocations, vertebral subluxations or non-spinal join displacement.

Turning to the opposing affidavit of Dr. Jenkins, the Court finds that the basis of Dr. Jenkins’s opinion that the x-rays were not reasonable, related or medically necessary is simply that he found the medical record-keeping to be deficient. As a result, the Court finds that Dr. Jenkins’s affidavit does not create any questions of fact because it lacks factual predicate.

As it pertains to relatedness, Dr. Jenkins’s affidavit does not contain any factual basis to conclude that Mr. Rodriguez’s injuries were caused by anything other than the April 20, 2010, car accident. To the contrary, the medical records on which Dr. Jenkins relies demonstrate that Mr. Rodriguez was in a car accident on April 20, 2010, and he sustained injuries in that accident.

With no evidence in the record that Mr. Rodriguez’s injuries were caused by anything other than the subject accident, Dr. Jenkins’s affidavit does not create any questions of fact with regard to relatedness.

As it pertains to reasonableness of the charges, Dr. Jenkins offers no opinion regarding a reasonable price for the subject x-rays, but instead simply concludes that the charges were “not reasonable for Miami-Dade County for 2010.” (Jenkins Affidavit at ¶ 4). As such, the affidavit fails to rebut Plaintiff’s affidavit that Plaintiff’s charges for services rendered were in fact reasonable.

Dr. Frankl opines that the charges for the x-rays were reasonable and those “reasonable” charges are already in the record. Dr. Jenkins offers no opinion as to what a “reasonable” charge might be, such that a jury could make a determination of a “reasonable” charge if the question were sent to the jury.

Finally, as it pertains to medical necessity, Dr. Jenkins bases his opinion on the sufficiency (or alleged lack thereof) of the medical record keeping.

The Court notes that a similar affidavit of Dr. Jenkins was determined to be conclusory and insufficient to create any fact questions by a Volusia County trial court. See Dr. Kim Reddick, D.C., P.A. (Patricia Camblin) v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 487b (Volusia County Court, February 20, 2012), Feigenbaum, J.

As the Plaintiff points out, the PIP Statute’s definition of “medically necessary” makes no mention of medical record-keeping. Rather, “medically necessary,” as it is defined by the legislature in the PIP Statute, “refers to a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is: (a) in accordance with generally accepted standards of medical practice; (b) clinically appropriate in terms of type, frequency, extent, site, and duration; and (c) not primarily for the convenience of the patient, physician, or other health care provider.” Fla. Stats. §627.732(2).

In Sims v. Brown, 574 So.2d 131 (Fla. 1991), a medical malpractice case, the Florida Supreme Court affirmed the exclusion of evidence of the hospital’s alleged deficient medical record-keeping on the basis that record-keeping is not relevant to a determination of whether medical treatment is rendered within the acceptable standards of care. This Court finds that that same analysis is applicable here. Medical record-keeping cannot form the basis of an opinion that medical treatment rendered to a PIP claimant is not medically necessary.

This Court joins a number of other county courts in the state, and at least two circuit courts, that have ruled that alleged lack of documentation or deficient record keeping cannot form the basis of either a defense or an opinion that medical treatment is not medically necessary. Further, the Court notes that the Eleventh Judicial Circuit Court, in its appellate capacity, has held that a medical expert opinion asserting that a provider’s documentation is deficient without offering anything more does not create an issue of material fact to avoid summary judgment. See United Auto. Ins. Co. v. Automobile Insurance Company v. Apple Medical Center, L.L.C., 18 Fla. L. Weekly Supp. 336b (Fla. 11th Jud. Cir., February 10, 2011)(holding that expert’s conclusory affidavit containing bald assertion that the physician provider’s documentation is “deficient comes without citation to law, regulation or rule,” and creates no material issue of disputed fact).

This Court finds persuasive the trial court orders that have similarly found that allegations of deficient record-keeping do not provide a defense to a PIP claim and cannot form the basis of an opinion that medical treatment was not “medically necessary.” See Rojas v. United Auto. Ins. Co., Case No. 11-02567 CC 26 (03) (Miami-Dade County Court, March 28, 2013), Gonzalez-Paulson, J. (“Minimal record keeping is not a defense to RRN. It is an administrative matter.”); Windhaven Ins. Co. v. Right Choice Med. & Rehab. Corp., 19 Fla. L. Weekly Supp. 667c (Miami-Dade County Court, May 4, 2012), Perez, J. (“The Insurer in a PIP case does not enjoy a private right of enforcement of an administrative code, regulatory statutes, licensing compliance regulations, or medical records standards.”); Milo Diag. Center, Inc. (a/a/o Caridad Moreno) v. State Farm Fire & Cas. Co., 18 Fla. L. Weekly Supp. 211a (Miami-Dade County Court, July 1, 2010), Walsh, J. (administrative code regarding mobile x-rays is not relevant to a determination of whether a mobile x-ray is “medically necessary” relying upon the PIP Statute’s definition of “medically necessary”); Michael J. Delesparra, D.C. P.A. (a/a/o Joseph Walkens) v. MGE Ins. Co., Inc., 19 Fla. L. Weekly Supp. 854c (Broward County Court, June 18, 2012), Lee, J. (“This precise issue has been addressed by at least two trial courts, both of which agreed that failure to maintain adequate medical records is not a defense to payment in a PIP case.”); Dr. Kim Reddick, D.C., P.A. (Patricia Camblin) v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 487b (Volusia County Court, February 20, 2012) Feigenbaum, J. (finding affidavit of Dr. Gene Jenkins to be conclusory and insufficient to create a disputed material issue of fact for summary judgment purposes); Ali v. McCarthy, 17 Fla. L. Weekly Supp. 661a (Seminole County Court, May 25, 2010), Simmons, J. (“If the facility and the treating physicians are properly licensed by the State of Florida or regulatory boards that govern these entities, then the Defendant’s inquiry ends there. The Defendant may not parse the statute or administrative requirements and inquire into the treating physician’s compliance with those requirements.”); South Florida Pain & Rehabilitation, Inc. (Kirt Godfrey) v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 981b (Broward County Court, August 10, 2009), Trachman, J. (“Any opinion regarding the adequacy of the records is not germane to the issue of RRN. An alleged failure to maintain adequate records is not a legal basis to support the finding that the medical services were not RRN.”)

In accordance with the above persuasive and binding authorities, this Court finds that Dr. Jenkins’s affidavit, which is predicated solely upon the alleged inadequacy of the Plaintiff’s documentation is insufficient to create a factual issue as to the medical necessity of treatment rendered by the Plaintiff because the affidavit is conclusory and lacks any factual predicate.The X-Ray Films

The Defendant argues that the Plaintiff’s failure to produce the actual X-ray films precludes summary judgment. In connection therewith, the Defendant argues that summary judgment is precluded by the Florida Supreme Court’s decision in Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla. 1987). The Court finds that Valcin is not applicable in this case.

First, the Court notes that the X-ray reports are part of the medical records. The X-rays were interpreted by a radiologist who issued his findings from the X-rays. Both experts relied upon the X-ray reports in rendering their opinions and the X-ray reports were provided to the Defendant at the claims stage, Thus, the issue of the medical necessity of the X-rays can be determined from those findings and it is not necessary for the Plaintiff to produce the actual X-ray films.

Valcin involved the Court’s analysis of the presumption that arises when a party has lost or destroyed evidence that is critical to the plaintiff’s ability to prove his or claim or the defendant’s ability to defend against a claim. The actual X-ray films that the Defendant argues are critical to its defense, in fact, are not relevant to any issue in the case because the Defendant could challenge medical necessity based solely upon the X-ray reports — but it has not. Instead, the Defendant has retained an expert who opines that the X-rays are not reasonable, related or medically necessary because the medical records do not set forth the rationale for ordering the X-rays. (Jenkins Affidavit at ¶ 4).

Moreover, the Court finds that Dr. Jenkins’s affidavit, which opines that the Plaintiff was required to maintain the X-ray films by administrative code, does not support any recognizable defense because there is no requirement in the PIP statute that the actual films of x-rays must be produced for a PIP claim to be compensable. In the absence of a specific provision in the PIP law permitting a restrictive term or limitation on coverage, a PIP policy cannot include conditions to coverage. See Custer Medical Center v. United Auto. Ins. Co., 62 So.3d 1086, 1089 n.1 (Fla. 2010) [35 Fla. L. Weekly S640a]. If the Legislature intended to require the production of medical records, including X-ray films, it “could have said so” in the statute — but it has not. See Florida Medical & Injury Center, Inc. v. Progressive Express Ins. Co., 29 So.3d 329, 338 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b]; Michael J Delesparra, D.C., P.A. (Joseph Walkens) v. MGA Insurance Company, Inc., 19 Fla. L. Weekly Supp. 854c (Fla. 17th Circuit County 2012)(“although medical providers are required to maintain a certain level of medical recordkeeping, it does not follow that failure to do so renders a provider’s treatment gratuitous,” citing Florida Medical & Injury Center, Inc., v. Progressive Express Insurance Company, 29 So.3d 329, 341 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b], providing that “Florida statutes are filled with duties and requirements unaccompanied by penalties or consequences for noncompliance. The courts are not at liberty to manufacture one.”)

With respect to production of the X-ray films, the Defendant also relies upon State Farm Fire & Cas. Co. v. Milo Diag. Center, Inc. (a/a/o Leidys Lopez), 19 Fla. L. Weekly Supp. 791a (Fla. 11th Jud. Cir., June 26, 2012). The Court finds that Lopez, a mobile x-ray case, is distinguishable and not applicable in this case for purposes of summary judgment.

The Lopez case involves the shifting of burdens at trial with respect to which party has the burden of proving that it was not practical to transfer a patient to a stationary x-ray facility as opposed to taking a mobile X-ray. That case involved the administrative code that discourages the use of mobile X-rays where it is not impractical to transfer the patient to a stationary facility. There, the trial court excluded that portion of State Farm’s expert’s testimony that went to the quality of the X-rays, finding that the quality of the X-rays was not relevant to a determination of whether the administering of a mobile X-ray violated the administrative code regulating such mobile X-rays. The circuit court reversed, saying that the testimony was relevant because mobile X-rays may result in inferior film quality.

This case does not involve a mobile X-ray. Therefore, the quality of the X-rays is not at issue in this case.¹

Accordingly, that portion of Dr. Jenkins’s affidavit that purports to impose a requirement on the Plaintiff to maintain medical records, including the actual X-ray films, does not create any material issue of fact precluding summary judgment. The Court notes that nothing in Dr. Jenkins’s affidavit demonstrates that he is qualified to render an opinion about a medical provider’s compliance with administrative codes and/or regulations in any event because, pursuant to statute, regulatory matters are left to the appropriate regulating agencies.Diagnostic Tests Are Presumptively Compensable

The Plaintiff relies on Banyas v. American Mut. Fire Ins. Co., 359 So.2d 506 (Fla. 1st DCA 1978) for the proposition that diagnostic tests are presumptively compensable absent competent evidence that demonstrates otherwise.

Several district courts and circuit courts, sitting in their appellate capacity, have so held. See also Leal v. Waterproofing Sys. of Miami, Inc., 812 So.2d 473 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D532b] (holding that trial court erred in denying motion for directed verdict on issue of recovery for diagnostic bills); Sparks-Book v. The Sports Authority, Inc., 699 So.2d 767 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D2069c] (“At a minimum, the plaintiff was entitled to recover for those medical expenses incurred for any diagnostic testing which was reasonably necessary to determine whether the accident caused her injuries.”); Peek v. Stevens, 395 So.2d 617 (Fla. 5th DCA 1981)(reversing jury verdict and denial of motion for new trial where “[t]here is no question that at least the diagnostic medical bills were directly related to the accident.”); Blanford v. Polk County, 410 So.2d 667 (Fla. 2d DCA 1982)(“it was undisputed that a portion of the medcial expesnes were incurred for diagnostic testing which was reasonably necessary to determine whether or not the accident caused the appellant’s injuries, and therefore, at least that amount had to be awarded to the appellant.”); Valdez v. State Farm Mut. Auto. Ins. Co., 381 So.2d 743 (Fla. 3d DCA 1980)(reversing defense verdict where court found that “it is our view that the defendant. . . was also obligated to pay PIP benefits to the plaintiff . . . for reasonable medical and hospital expenses incurred during the plaintiff’s three day stay at Mt. Sinai Hospital. . . for diagnostic tests,” citing Banyas); Ridenour v. Sharek, 388 So.2d 222 (Fla. 5th DCA 1980)(“[t]he medical testimony conclusively established that the medical and hospital expenses incurred were reasonably necessary to determine whether or not the accident cause the difficulty, and to allow the commencement of proper medical treatment”); Barris v. Toppers of Florida, Inc., 382 So.2d 441 (Fla. 1st DCA 1980)(“Compensability for diagnostic tests and surgery cannot be based upon an after-the-fact determination as to causation. It is the purpose of the diagnosis, as opposed to the ultimate causal relationship of the symptom, that determines whether or not the medical expenses necessary to make the diagnosis are compensable.”) State Farm Mut. Auto. Ins. Co. v. Stand Up MRI (a/a/o Nancy Baker), Case No. 10-004 AP (Fla. 11th Jud. Cir., June 1, 2011), cert. den. 3D11-2125; West Bales Open MRI, Inc. (a/a/o Nelly Ladino) v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 870a (Fla. 11th Jud. Cir. June 10, 2005)(granting plaintiff motion for directed verdict or motion for JNOV), King-Leban, J,; ROM Diagnostics (a/a/o Roland Medley) v. Allstate Ins. Co., 9 Fla. L. Weekly Supp. 392a (Fla. 9th Jud. Cir., April 16, 2002), Arnold, J., (denying Allstate’s motion for summary judgment which denied liability on the basis that the insured did not benefit from range of motion test, relying on “rule out” doctrine; a patient does not have to receive any benefit from the medical provider in order for a necessary medical expense to be compensable, relying on Banyas); Veronica Davis v. Allstate Indem. Co., 7 Fla. L. Weekly Supp. 552a (Fla. 17th Jud. Cir., May 15, 2000), Wright, J., (granting plaintiff’s motion for directed verdict based on Banyas, stating “expense of diagnostic testing is recoverable even if the tests are negative, or if the tests reveal the injuries are not related to the accident.”)

Consistent with the “rule in — rule out” doctrine established by Banyas, supra, Dr. Frankl affirmatively opines that the X-rays were medically necessary to determine “if osseous pathology exists in addition to fractures, dislocations, vertebral subluxations and non-spinal joint displacement” when an accident victim presents with certain symptoms of pain and discomfort.

Dr. Jenkins’s affidavit did nothing to rebut that medical testimony other than to conclusorily opine that the X-rays were not medically necessary because the Plaintiff was required to maintain the X-ray films for a period of years proscribed by the administrative codes; that the medical records did not contain a “rationale” for diagnosing the X-rays; and, that the medical records did not indicate whether the treating physician reviewed the X-rays. Dr. Jenkins’s affidavit does not provide any competent evidence to prove that the X-rays were medically unnecessary.

Contrary to the Defendant’s position that the Court has “weighed” the evidence, the Court has conducted a thorough review of the affidavits to determine their legal sufficiency with regard to whether the affidavits create any fact questions to preclude summary judgment.

The Court concludes that Dr. Frankl’s affidavit sufficiently meets the Plaintiff’s prima facie burden of proving that the X-rays were reasonable, related and medically necessary, and that Dr. Jenkins’s affidavit does not create any fact questions with regard to RRN because the Jenkins affidavit is conclusory and lacking in any factual predicate. An expert’s criticism of medical record-keeping does not provide a factual predicate to rebut the medical necessity of treatment rendered to a PIP insured.

Therefore, it is hereby

ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is GRANTED.

__________________

¹As the Court noted earlier, Progressive’s counsel’s suggestion that the X-rays are necessary to prove that they were actually taken is not supported by any allegation in the pleadings, as no fraud claim was alleged, nor does anything in the record suggest that the X-rays were never taken. To the contrary, a radiologist interpreted the X-rays and made findings, and those findings were relied upon by both experts in their affidavits.