24 Fla. L. Weekly Supp. 704a
Online Reference: FLWSUPP 2409GARCInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment is granted in favor of medical provider on issues of relatedness and medical necessity of x-rays where opposing affidavits fail to create genuine issue of material fact — Affidavit of provider’s owner and records custodian that establishes that charges were usual and customary for provider’s facility but fails to provide information on payments accepted by provider and reimbursement levels in community is insufficient to establish prima facie showing of reasonableness of charges — Provider’s motion for summary judgment as to reasonableness of charges is denied
GABLES INSURANCE RECOVERY, INC., a/a/o Rosario Garcia, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 2012-12645-SP 25 (02). October 28, 2016. Gina Beovides, Judge. Counsel: Dagmar Llaudy, Law Offices of Dagmar Llaudy, P.A., Coral Gables, for Plaintiff. Charles M. Prior, Cole, Scott & Kissane, P.A., Plantation, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AS TO REASONABLENESS,MEDICAL NECESSITY AND RELATEDNESS
THIS CAUSE having come before the Court on September 27, 2016, on the Plaintiff’s Motion for Summary Judgment and the Court after having considered the argument of counsels, having reviewed all the applicable documents in the Court file, after having reviewed all the case law provided by the attorneys and being fully advised of the premises thereof, the Court finds as follows:FINDINGS OF FACT
This is an action for the recovery of Personal Injury Protection (“PIP”) benefits pursuant to the Florida’s Motor Vehicle No Fault Law, Fla. Stat. §627.736 arising out of an automobile accident which occurred on June 4, 2008. At the time of said accident, Defendant had issued an insurance policy which provided PIP benefits to Rosario Garcia (“Claimant”). On June 5, 2008, the insured sought medical treatment from Guido A. Perez, M.D., at ISOT Medical Center, Corp. Based on the initial evaluation, Dr. Perez prescribed x-rays to be taken of the Claimant. The provider submitted its bills for services to the Defendant which were unpaid. Gables Insurance Recovery, Inc. (“Plaintiff”) obtained a valid assignment of benefits from Finlay Diagnostic Center (“Provider”) and filed suit to collect the assigned benefits. The amount at issue is $498.88 plus statutory interest accrued thereon. Plaintiff now moves for Summary Judgment on whether its medical bills/charges were Reasonable, Related and Medically Necessary.STANDARD ON MOTION FOR SUMMARY JUDGMENT
“[Summary judgment procedure is necessarily in derogation of the constitutionality protected right to trial.” Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Therefore, a party to a civil suit is entitled to summary judgment only “if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). The proof offered by the moving party must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party. See Holl, 191 So. 2d 40 (Fla. 1966). The 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 a party against whom summary judgment is sought. See Moore v. Morris, 475 So. 2d 666 (Fla. 1985). Summary judgment should not be granted unless facts are so crystallized that nothing remains but questions of law. Id. If evidence on summary judgment raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of act to be determined by it. Id.RELATEDNESS AND NECESSITY
Relatedness is established by showing that injuries and subsequence medical treatment arose out of a subject accident. See Sevila & Witt Pressley Weston v. United Automobile Insurance Company, 21 Fla. L. Weekly Supp. 306b (11th Judicial Circuit)(Appellate Capacity, November 26, 2013). See also In re Standard Jury Instruction in Civil Cases, 966 So. 2d 940, 942 (Fla. 2007) [32 Fla. L. Weekly S563a] (medical treatment covered by the insurance policy is treatment to the bodily injury arising out of the ownership, maintenance, or use of the motor vehicle). Plaintiff established their burden of production through the affidavit of Dr. Guido A. Perez. The affidavit of Dr. Propper, submitted by the Defendant, fails to create a genuine issue of fact as it pertains to the issue of relatedness. As such, this Court GRANTS Plaintiff’s summary judgment as to the Relatedness of all CPT Codes at issue.
Further, Medically Necessary as defined by Florida Statute §627.736 means 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 in accordance with generally accepted standards of medical practice; clinically appropriate in terms of type, frequency, extent, site, and duration; and not primarily for the convenience of the patient, physician, or healthcare provider. Plaintiff established their burden of production through the affidavit of Dr. Guido Perez. Defendant’s expert, Dr. Michael Propper agreed that the x-ray of the cervical spine being medically necessary (See Affidavit of Michael S. Propper, MD., Page 10, ¶3). Additionally, this Court finds that this conclusions about x-rays of the lumbar and dorsal spine fail to create a genuine issue of material fact. While he concludes said x-rays exposed the claimant to radiation, he fails to explain why there were nonetheless not medically necessary. As such, this Court GRANTS Plaintiff’s summary judgment as to Medically Necessary.
REASONABLENESS OF THE CHARGES
Pursuant to Fla. Stat. §627.736(5)(a)1, in determining a reasonable charge, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply. ‘Where the wording of the law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the law.’ United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2001) [26 Fla. L. Weekly S747a]. The first criteria set forth in section (5)(a)(1) provides that consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the disputes. The statute’s use of the word “and” establishes that evidence of the providers usual and customary charges can only be considered in conjunction with evidence of payments accepted by the provider involved in the dispute. The second criteria of (5)(a)(1) deals with reimbursement levels. Therefore, evidence of usual and customary charges of other providers cannot be used as evidence that Plaintiff’s charges are reasonable. See United Auto. Ins. Co. v. Mercedes Valientes, 24 Fla. L. Weekly Supp. 20a (11th Judicial Circuit)(appellate capacity, March 21, 2016)(finding that usual and customary charges in the medical community do not satisfy the catch-all factor provision of section 627.736(5)(a)(1)).
In the matter sub judice, Plaintiff submitted the Affidavit of Eddian Rodriguez (Provider’s owner and records custodian) to establish their plaintiff’s prima facie showing of the reasonableness of its charges. Mr. Rodriguez testified that their charges have remained consistent for years, are based on the prevailing amounts for these types of services by other community providers, and do not exceed usual and customary charges in the community. He further adds that prior to 2008, his charges were never characterized as “unreasonable” or “excessive.” (See Affidavit of Eddian Rodriguez, Page 2, ¶11-12). The Court finds that the Affidavit of Eddian Rodriguez is insufficient to establish Plaintiff’s prima facie case as to reasonableness of its charges. While Mr. Rodriguez was able to establish that his prices were usual and customary for his facility, he provided no information as to payments accepted and/or reimbursement levels in the community. Although one may deduce that Mr. Rodriguez’s statement that his prices were never characterized as unreasonable prior to 2008 is perhaps evidence of payments accepted by the provider, the court must draw every possible inference in favor of the non-moving party. See Moore v. Morris, 475 So. 2d 666 (Fla. 1985).
Since the burden did not shift, the Court need not analyze the sufficiency of the evidence presented by the Defendant as it pertains to reasonableness of the charges. Based on the foregoing, Plaintiff’s Motion for summary judgment as to Reasonableness of the Charges is DENIED.
IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is:
GRANTED as to Relatedness and Medical Necessity and DENIED as to Reasonableness of the Charges
