24 Fla. L. Weekly Supp. 444a

Online Reference: FLWSUPP 2406GSANInsurance — Personal injury protection — Coverage — Medical expenses — Summary judgment — Relatedness and medical necessity of services — Insurer’s pre-suit decision to pay for medical services, albeit at reduced rate, is confession that services are medically necessary, related to accident, and otherwise payable — Reasonableness of charges — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affiant considered only Medicare and workers’ compensation fee schedules

MIAMI MEDICAL CARE CORPORATION (a/a/o Giselle Sanchez), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 15-0389 SP 21. July 5, 2016. Don Cohn, Judge. Counsel: Ryan Peterson, Patino Law Firm, Hialeah, for Plaintiff. Vernis & Bowling, PA, for Defendant.

FINAL JUDGMENT FOR PLAINTIFF

COMES NOW, the COURT, having found heard argument on June 27, 2016 at the Plaintiff’s Motion for Final Summary Judgment, and hereby enters Final Judgment for the Plaintiff, as follows:

1. In this matter for recovery of PIP benefits, the Plaintiff provided services to a woman by the name of Giselle Sanchez, related to an accident of December 9, 2011. The Defendant paid for all of the services, but at reduced amounts.

2. Typically, in proving that services are compensable in this lawsuit, the Plaintiff must show that the services are related to the accident and medically necessary. However, here, the Defendant paid the medical bills in question. In the binding case of United Auto. Ins. Co. v. Coral Gables Chiro. PLLC, 21 Fla. L. Weekly Supp. 992a (Fla. 11th Circ. Appellate, 2016), the appellate Court ruled that due to the Defendant’s payment of services, “[a]s to the necessity and relatedness of said charges, we find that Petitioner has waived these arguments.” United was unsuccessful in its appeal of that decision to the Third DCA.

3. As a result of this and other cases, numerous courts have now found that an insurer’s payment of medical bills is a confession that the bills are related to the accident, medically necessary, and otherwise payable. See Glenn V. Quintana, D.C., P.A. (a/a/o Melissa N. Evans) v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 882a (Fla. 11th Jud. Cir. Cty., J. Schwartz, July 11, 2012) (“The Court does not feel that when the legislature created 627.736(4)(b), that they intended for insurers to be able to retroactively deny previously paid bills, and so the Court finds in favor of the Plaintiff on this issue. Any of the services which were previously paid by State Farm are deemed medically necessary, and related to the accident.”); The Personal Injury Clinic (a/a/o Neybi Gonzalez) v. United Auto. Ins. Co., Case No. 12-2519 SP 21 (Fla. 11th Jud. Cir. Cty., J. Schwartz, August 11, 2015) (“Summary Judgment is granted as to relatedness and medical necessity for any dates of service where the Defendant issued payment.”); Y.H. Imaging, Inc. (a/a/o Osmany Tabares v. Mercury Ins. Co. of Fla., 22 Fla. L. Weekly Supp. 835a (Fla. 11th Jud. Cir. Cty., J. Graham, January 22, 2015) (citing Glenn V. Quintana, D.C., P.A., supra); Dr. Allan Mandell, P.A., d/b/a Mandell Chiropractic Ctr. (a/a/o George Cargil) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 1079c (Fla. 11th Jud. Cir. Cty., J. Kravitz, March 30, 2015) (“In this Court’s opinion that when the legislature created 627.736(4)(b), that they did not intend for insurers to be able to retroactively deny previously paid bills, merely to defend a lawsuit on other grounds. . .[w]aiting until suit is filed to question, for the first time, whether a bill it paid was necessary/related, is inconsistent with the legislative intent of Florida’s PIP statute.”); Miami Dade County MRI, Corp (a/a/o Barbara Harrell) v. United Auto. Ins. Co., Case No. 12-14170 SP 23 (01) (Fla. 11th Jud. Cir. Cty., J. Lehr, August 6, 2015) (“For State Farm to suggest, retroactively, that some of the bills that had already been paid (and in effect, affirmed coverage for) are now not covered because they were unnecessary, would, violate the provision of the bad-faith statutes. . .” Additionally, “[t]he Court does not feel that when the legislature created 627.736(4)(b), that they intended for insurers to retroactively deny previously paid bills. . .” (citing Glenn V. Quintana, D.C., P.A., supra)); Pan AM Diagnostic Services, Inc. (a/a/o Jermaine Lewis) v. State Farm Mutual Automobile Insurance Company, Case No. 13-3485 SP 23 (Fla. 11th Jud. Cir. Cty. J. Lehr, January 7, 2016) [23 Fla. L. Weekly Supp. 851b] (“The Defendant decided that the service at issue was related and necessary, under FSS 627.736(1)(i)(3) and 627.736(4)(b), when it approved and paid the claim without notifying Plaintiff that it was disputing the claim. [citations omitted]. As a matter of law, the Defendant may not now withdraw its affirmation of coverage, and deny relatedness and necessity.”).

4. See also MR Services I, Inc., D/B/A C&R Imaging of Hollywood (a/a/o Tamara G. Rodriguez) v. Star Cas. Ins. Co., 22 Fla. L. Weekly Supp. 856b (Fla. 17th Jud. Cir. Cty., J. Dishowitz, January 14, 2015) (“It is clear that the legislature did not intend for Fla. Stat. 627.736(4)(b), to be used a shield to extend litigation, and provide a do-over for the insurer when, but for the lawsuit, it would not have done such a review. . .[t]he MRIs paid by Star Casualty Insurance Company in the case at bar are deemed medically necessary and related.”); Emergency Med. Assocs. of Tampa Bay, L.L.C. (a/a/o Shawn McNally-Plast) v. Progressive Select Ins. Co., 23 Fla. L. Weekly. Supp. 58b (Fla. 7th Jud. Cir. Cty., J. Kelly, May 27, 2014) (“This Court finds that based on Defendant’s actions of processing the bill at issue and applying the full amount to the deductible renders any inquiry into whether the claim was unrelated, was not medically necessary, or the charge was unreasonable is irrelevant under the facts of this case.”); Emergency Med. Prof’ls, P.A. (a/a/o Diana Harpel) v. First Acceptance Ins. Co., 22 Fla. L. Weekly Supp. 937a (Fla. 7th Jud. Cir. Cty., J. Fields, July 16, 2014) (“The Defendant’s actions of processing the bill at issue under the permissive fee schedule and applying it to the deductible. . .renders any inquiry into whether the claim was related, medically necessary, or whether the charge was unreasonable irrelevant under the facts of this case.”); Donald W. Lowery, D.C. (a/a/o Daris Young) v. Progressive Select Ins. Co., 16 Fla. L. Weekly Supp. 755a (Fla. 4th Jud. Cir. Cty., J. Arias, July 10, 2008).

5. Given the broad support this proposition has in the caselaw and reported decisions, the Court finds that a Defendant’s pre-suit decision to pay for the medical service, but at a reduced amount, is a confession that the service is medically necessary, related to the accident, and otherwise payable. The Defendant’s filing of an affidavit from an “expert” physician years after the lawsuit is filed in order to attempt to create a disputed issue of fact five days before a summary judgment to suggest the insurance company should not have paid for services which the insurer paid pre-suit is not legally appropriate, and would seem to suggest a violation of Fla. Stat. 626.9541(1)(i), given the above authorities and caselaw, a result the Court is sure the legislature did not intend.

6. Regarding reasonableness, the Court, as well as dozens of other courts across Florida, have previously found now on multiple occasions, that a filing of a medical bill is evidence of the Plaintiff’s prima facie case for reasonableness. See Pan Am Diag. Ctr., Inc. v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (17th Circ. 2013, Judge Lee); A1A Management Svcs. v. State Farm Mut Auto. Ins. Co. 13-16085 SP 25 (11th Circ. 2015, Judge Cohn); Radiology Mobil Ctr., Inc. v. State Farm Mut Auto. Ins. Co., 11-3265 SP 21 (11th Circ. 2016, Judge Cohn) [24 Fla. L. Weekly Supp. 343a]. As such, the Plaintiff has proven its prima facie case.

7. In opposition to reasonableness, the Defendant has provided the affidavit of Dr. Michael Mathesie, D.C., who considers Medicare and Worker’s Comensation fee schedules. The Court has previously held that this alone is a reason to exclude a reasonableness affidavit, as the affidavit is legally insufficient, it does not create an issue of fact. See Radiology Mobil, supra.

8. As a result of the above, the Court finds that the Plaintiff has proven that there is no issue of fact, and hereby ENTERS a FINAL JUDGMENT for the Plaintiff, for $68.25 plus interest from 3/6/2012, FOR WHICH LET EXECUTION ISSUE FORTHWITH. The Court reserves jurisdiction for post trial motions to tax attorney fees and costs.