24 Fla. L. Weekly Supp. 72a

Online Reference: FLWSUPP 2401RHERInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Insurer that breached contract by utilizing statutory fee schedule that was not incorporated in policy when processing medical provider’s bill is not entitled to challenge reasonableness of MRI charge — Even if insurer could challenge reasonableness of charge, opposing affidavit filed by insurer does not preclude summary judgment in favor of provider on reasonableness issue where affidavit failed to establish that affiant has any experience or qualification regarding MRI charges in county where services were rendered

COASTAL RADIOLOGY, LLC., (RAMON HERNANDEZ), Plaintiff(s), vs. STATE FARM FIRE & CASUALTY COMPANY Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-12574 SP 23 (03). March 1, 2016. Linda Singer Stein, Judge. Counsel: Rowena Racca, Joseph R. Dawson, P.A., Fort Lauderdale, for Plaintiff. Angelica Torrents, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on the Plaintiff’s Motion for Final Summary Judgment, and the Court having reviewed the motion, the entire Court file, and the relevant legal authorities; having heard the parties’ arguments; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:

Relatedness and medical necessity are not at issue in this case. The only remaining issue for this court to decide is whether summary judgment should be granted regarding the reasonableness of the Plaintiff’s price for the Lumbar MRI rendered to the claimant, Ramon Hernandez.

I. Reasonableness of the Plaintiff’s price

In support of the reasonableness of the price at issue, the Plaintiff relied upon the timely filed affidavit of its office manager, Clarissa Pimentel, a fact witness, who testifies how the price was set, and that the price is the Plaintiff’s usual and customary charge for which it has received reimbursements based upon being allowed its full price of $2,180 for MRI scan as a reasonable charge from No Fault insurers who did not adopt or apply the 200% of Medicare schedule of limited reimbursement in their policies. The Court finds that the Affidavit of Ms. Pimentel satisfies Plaintiff’s burden of production as to the reasonableness of its charges. The Court also finds that it is not necessary for a plaintiff to provide expert testimony regarding the reasonableness of its medical bills. See State Farm Mutual Auto. Ins. Co. v. Multicare Medical Ctr., Inc. et. al, 12 Fla. L. Weekly Supp. 33a (Fla. 11th Cir. Appellate 2004); see also A1A Management Services, LLC d/b/a Roberto Rivera-Morales, M.D. v. State Farm Mutual Auto Ins. Co., 22 Fla. L. Weekly Supp. 835c (Dade Cty. 2015); Pan Am Diagnostic Services, Inc. a/a/o Fritz Telusma v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Broward Cty. 2013). Reasonableness can be established through lay witness testimony. See id.

II. Defendant Breached the Contract by Limiting its Reimbursement to 200% of Medicare Part B Fee Schedule provided in 627.736(5)(a)(2)

Under Fla. Stat. 627.736(5)(a)(1) and the Defendant’s policy of insurance, Defendant is required to pay 80% of a provider’s bill if the amount billed is reasonable. In this case, Defendant did not allow Plaintiff’s billed amount and the reimbursement was based solely on 200% of Medicare Part B Fee Schedule as set forth in Fla. Stat. 627.736(5)(a)(2).

It is well settled that in order to take advantage of the limited reimbursement schedule provided by Fla. Stat. 627.736(5)(a)(2), an insurer must specify that method to the exclusion of any others. Geico General Insurance Co. v. Virtual Imaging Services, Inc. (“Virtual II”), 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b) aff’d 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; Geico Indem. Co. v. Virtual Imaging Svcs., Inc. (“Virtual I”), 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a].

In GEICO General Insurance Co. v. Virtual Imaging Services, Inc., 90 So. 3d 321, 322-23 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b], the Third District Court of Appeal explained that a No Fault insurer could not limit reimbursements to the fee schedule referenced in section 627.736(5)(a)(2) without providing notice to its insured of this election in its contract of insurance. That decision was approved by the Supreme Court of Florida in GEICO General Ins. Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] and is now the controlling law of Florida. Under the Florida Supreme Court’s Virtual Imaging decision, an insurer must “give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements.” Virtual Imaging, 141 So. 3d at 150.

In this case, Defendant did not contract with the policy holder to limit its payments under the Fla. Stat. 627.736 (5)(a)(2) fee schedule in order to do so as required by Virtual Imaging. Defendant was therefore obligated to pay 80% of any reasonable charges billed for the benefit of its insured. Instead, Defendant simply calculated and paid 80% of 200% Medicare under the 627.736(5)(a)(2) formula. Unless Defendant can demonstrate that that amount is the maximum reasonable amount for Plaintiff’s services after making a “reasonableness analysis” under 5(a)(1) the Defendant is not permitted to use the “200% Medicare” as the exclusive methodology to limit reimbursement. See also Virtual Imaging Svcs., Inc. v. United Auto Ins. Co., FLWSUPP 2304ALFO (Fla. 11th Cir. Appellate 2015) [23 Fla. L. Weekly Supp. 304a] (Florida law provides two ways for insurers to calculate reimbursement: i.) a “fact dependent method under [section] 627.736(5)(a)1, [Florida Statutes]; or ii.) by utilizing the permissive fee schedules under 627.736(5)(a)2; . . .these methodologies are separate and distinct, and insurer cannot alternate between the two; it must select one in the policy itself). See also Hialeah Medical Assoc. v. United Auto, 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. Appellate 2014)(finding that “medicare fee schedules are not relevant in PIP cases, and should not be used. In 2008, the legislature allowed such schedules to be used as an alternative reimbursement method that insurers may use if they elect such a fee schedule in their policies as their chosen method of calculating reimbursement”); CEDA Orthopedics & Interventional Medicine of FIU/Kendall LLC v. State Farm Mutual Auto Ins. Co., Case No. 14-3917 SP 24 (Miami-Dade Cty. Ct. October 8, 2015) [23 Fla. L. Weekly Supp. 565a] (if an insurer does not provide notice to the insured, through an election of the permissive Medicare fee schedule in the policy, “it is incumbent on the insurer to use the Reasonable Amount Method for reimbursement, taking into account the service provider’s usual and customary charges, community-specific reimbursement levels, and other relevant information”); All Care Health and Wellness Center v. State Farm, Case No. 12-7888 SP 23 (01), (Miami-Dade Cty. Ct., February 6, 2015) [23 Fla. L. Weekly Supp. 596a] (“an insurer may not rely on the Medicare Part B Fee schedules contained within 627.736(5)(a)2.f. Fla. Stat. (2008) unless that methodology has been clearly and unambiguously elected in the policy at issue”).

III. Dr. Propper’s Affidavit

Defendant filed the affidavit of Michael Propper, M.D. in opposition to Plaintiff’s Motion. This Court finds that Defendant may not utilize the other factors within its policy of insurance to challenge the reasonableness of Plaintiff’s price after it has erroneously limited its reimbursement to the Medicare Part B Fee schedule found in 627.736(5)(a)(2). See id. at Virtual Imaging Svcs., Inc. v. United Auto Ins. Co., FLWSUPP 2304ALFO (Fla. 11th Cir. Appellate 2015) [23 Fla. L. Weekly Supp. 304a] (“the purpose of (5)(a)2 was to reduce costs and eliminate litigation regarding reasonableness of charge. In other words, since the Defendant did not rely upon the remaining factors within its policy of insurance when processing the Plaintiff’s bill, it cannot now fall back upon the fact dependent inquiry to determine reasonableness of the charge.”). See also Florida Hospital Medical Center v. Progressive Select Insurance Company, Case No. 2013-SC-7779-O (Orange Cty., August 13, 2015) [23 Fla. L. Weekly Supp. 473a] (the insurer’s decision to reimburse the medical provider under the schedule of maximum charges, without incorporating the fee schedule in its policy, was a breach of contract. . . . Further, the court rejects the insurer’s reliance on 4(b) to retroactively deny or challenge the charge at any time including after payment of the claim. The insurer’s interpretation would render the other elements of (4)(b) meaningless and defeat the entire purpose of PIP). See also Stand-Up MRI of Tallahassee P.A. v. State Farm Mutual Auto Ins. Co., Case No 2014-SC-721 (Leon Cty. October 8, 2015) (the court declined to consider whether the affidavit in opposition to the reasonableness of the provider’s charge a the court found that the insurer was not in a legal posture to argue reasonableness where the insurer did not use the fact-dependent inquiry methodology as its policy required it to use); see also New Smyrna Imaging, LLC v. Southern-Owners Insurance Company, Case No. 2012-SC-1223 (Seminole Cty., September 30, 2015) (“due to the fact that defendant in this case chose not to employ the “reasonableness” method to calculate reimbursement, it cannot switch boats midstream. The reasonableness of the plaintiff’s charge is not at issue in this case. Once the defendant processed and reimbursed plaintiff’s bill under Fla. Stat. 627.736(5)(a)2.(2008-2011), it unilaterally determined reasonableness, and so it cannot fall back on Fla. Stat. 627.736(5)(a)1. (2008-2011) to challenge the reasonableness of the bill”).

Lastly, even if the Court were to consider the affidavit of Dr. Propper, it would not create a material issue of fact to defeat summary judgment. The affidavit of Dr. Propper failed to show sufficient nexus to Miami Dade County, and failed to establish that he has any experience or qualification in the geographic region in which the services at issue were rendered, Miami Dade county. For example, Dr. Propper referred to his “own practice” and “medical facilities” at which he worked, but he never stated what type of facility it is, nor where it is located. Because charges and reimbursements for medical services vary widely throughout the State of Florida based on the location of the provider, it is crucial for an expert to establish the geographic applicability of the opinion the expert is giving. See also Millennium Radiology v. State Farm Auto Ins. Co., Case No. 13-12617 SP 23 (04), (Judge Dimitris, Miami Dade Cty. September 22, 2015) [23 Fla. L. Weekly Supp. 768a]. This he did not do. Therefore, based on the above reasoning, Dr. Propper’s testimony is not based upon sufficient facts or data, and his conclusions are not the “product of reliable principles and methods,” as required by Fla. Stat. §90.702.

Although not binding on this court, this Court is also persuaded by the uniformity of trial level decisions in finding specifically that Dr. Propper is not competent to testify on the issue of reasonableness of price. See, e.g., Millennium Radiology, LLC v. State Farm, Case No. 12- 25508 SP 23 (06), (Judge Multack, Miami-Dade Cty, October 13, 2015); A1A Management Services v. State Farm Auto Ins. Co., 22 Fla. L. Weekly Supp. 835c, (Judge Gonzalez-Meyer, Miami-Dade Cty, 2015); A1A Management Services v. State Farm Auto Ins. Co., Case No. 13-16085 SP 25 (02), (Judge Cohn, Miami Dade Cty, August 13, 2015); Roberto Rivera-Morales, M.D. v. State Farm Auto Ins. Co., 22 Fla. L. Weekly Supp. 833b, (Judge Gonzalez-Paulson, Miami-Dade Cty., 2014), Best American Diagnostic Center v. State Farm Auto Ins. Co., Case Number 12-24918 (52), (Judge Miranda, Broward Cty., September 16, 2015); Coastal Radiology, LLC v. State Farm Auto Ins. Co., 22 Fla. L. Weekly Supp. 166a, (Judge Zeller, Broward Cty., 2014); Coastal Radiology, LLC v. State Farm Auto Ins. Co., 22 Fla. L. Weekly Supp. 167a, (Judge Lee, Broward Cty., 2014); Hollywood Diagnostic Center v. State Farm Auto Ins. Co., Case No. 10-15591 (Judge Skolnik, Broward Cty. 2014); Hallandale Open MRI, LLC v. State Farm Mutual Auto Ins. Co., 22 Fla. L. Weekly Supp. 646b (Judge Deluca, Broward Cty. 2014).

Based on the foregoing, Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED.