24 Fla. L. Weekly Supp. 441a
Online Reference: FLWSUPP 2406ROMEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit and transcript of expert’s testimony at Daubert hearing in another case filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of CT scan charges where expert’s opinion lacked sufficient facts or data as to charges and reimbursement in PIP industry and failed to explain how personal experience on which expert relied leads to his opinion of unreasonableness of provider’s charges, why his experience is sufficient basis for opinion, and how experience is reliably applied to facts
MILLENNIUM RADIOLOGY, LLC a/a/o Juan Romero vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-000883SP23(06). July 20, 2016. Spencer Multack, Judge.
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on June 1, 2016, on the Plaintiff’s Motion for Partial Summary Judgment with respect to the reasonableness of the Plaintiff’s charge. The Court having reviewed the motion and the relevant portions of the Court file; heard argument of counsel; reviewed relevant legal authorities; and being sufficiently advised on the premises, finds as follows:
This matter originates from a car crash involving Juan Romero (“Patient”) on or about February 14, 2011. As a result of the injuries sustained in the crash, the Patient was treated at Millennium Radiology, LLC (“Plaintiff”) on March 31, 2011. At the time of the crash the Patient was covered by a policy of insurance issued by the Defendant, which provided Personal Injury Protection benefits. By way of an assignment of benefits, the Plaintiff submitted its bill to the Defendant in the amount of $4,340.001. The Defendant reimbursed the Plaintiff in the amount of $1,016.64. The amount paid by the Defendant represented the amount payable under the permissive payment limitations of §627.736(5)(a)(2) Fla. Stat. (2009). Plaintiff has filed suit seeking payment in the amount of $2,455.36 which represents 80% of the amount billed less the amounts paid by the Defendant. The Plaintiff’s motion seeks to have the Court hold that the amount billed by the Plaintiff is reasonable.
REASONABLENESS OF THE PLAINTIFF’S CHARGE
The Plaintiff relies on the affidavit of Roberta Kahana to establish the reasonableness of the Plaintiff’s charge. Roberta Kahana is the owner of Millennium Radiology LLC, along with several other radiological centers. She has significant personal experience and knowledge of the MRI industry and has established, through her experience, what she believes to be a reasonable charge. The Plaintiff’s charge was based upon a comparison of what other similar centers were charging, along with referring to Ingenix and Medical Fees in the U.S.2 Kahana stated that the charge for Millennium was set in 2005 and has not changed since that time. She has maintained this charge throughout the years and has been fully reimbursed at this rate from insurance providers who do not reimburse pursuant to fee schedule. Additionally, her affidavit included examples of the charges of other MRI providers (similar to that of the Plaintiff) in the local community. The Court finds that the fact based analysis employed by Roberta Kahana meets the criteria as laid out in §627.736(5)(a)(1) Fla. Stat. (2011), which states:
. . . . .consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
A plaintiff’s prima facie showing of the reasonableness of its charges can be established by merely presenting the medical bill produced for the service at issue, along with testimony that the patient received the treatment in question. See A.J. v. State, 677 So.2d 935 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; Iowa Mutual Nat’l Ins. Co. v. Worthy, 447 So.2d 998 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409 (Fla. 1st DCA 1979); State Farm Mutual Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a (11th Cir. Ct. 2004) (appellate capacity). As noted by the Fourth DCA, “[A] medical bill constitutes the provider’s opinion of a reasonable charge for the services.” A.J., 677 So.2d at 937. In the alternative, a plaintiff may also present lay testimony from a fact witness with firsthand knowledge as to why the charge for the service was set at the rate at which it was billed. Multicare, 12 Fla. L. Weekly Supp. at 33a. A plaintiff may, but is not required to, produce an expert witness to establish the reasonableness of its charges. Sea World of Florida, Inc. v. Ace American Ins. Co., Inc., 28 So.3d 158 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So.2d 1122 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]. The Court finds in the matter sub judice, the Plaintiff has submitted sufficient evidence to meet its prima facie case to establish that its charge is reasonable.
The Defendant relies on the testimony of Dr. Edward Dauer to defeat the Plaintiff’s Motion for Summary Judgment. The Defendant has submitted an affidavit of Dr. Dauer and a Daubert hearing transcript from Millennium Radiology LLC (a/a/o Henry Esquivel) v. United Auto Insurance Company, 12-20656SP25 (Miami Dade County) [24 Fla. L. Weekly Supp. 237b]. The submitted affidavit is substantially the same affidavit as the Court reviewed in Pro Imaging Inc. a/a/o v. State Farm Insurance Company, 2012-2963SP23 (Miami-Dade County) [24 Fla. L. Weekly Supp. 71c] and further found failed to meet the standard as enunciated in §90.702, Fla. Stat. (2013). Consistent with the Court’s finding in Pro Imaging, the submitted affidavit in this matter lacks facts and data, and the application thereof, to establish Dr. Dauer’s opinion as to reasonableness. Dr. Dauer’s affidavit is general in nature and provides anecdotal evidence based on his own experience, to wit: what he is reimbursed for identical services at his facilities, in Broward County. He refers to discussion he has engaged in with his peers regarding reimbursement rates, without providing any detail as to what the reimbursement rates are, or how he comes to the conclusion that the Plaintiff’s charge is unreasonable. The submitted affidavit fails to meet the admissibility standard for these reasons.
However, as previously stated, the Defendant also submitted a transcript of the Daubert hearing conducted before Judge Carlos Guzman on February 17, 2016. At the hearing Dr. Dauer was given an opportunity to elaborate on how he reached the opinion that the Plaintiff’s3 charges are unreasonable. As background, Dr. Dauer described his thirty-three years in the radiological industry, which includes ownership of clinics in Broward County, teaching at the University of Miami, holding leadership positions at other hospitals, and consulting for the FDA. With regards to pricing, Dr. Dauer claims to be very familiar with the reimbursement levels for radiological services throughout the State of Florida and he is familiar with various fee schedules, including Ingenix and Medical Fees in the U.S. Dr. Dauer further explained that his own radiological practice involves contracting with insurance companies and that he is familiar with the rate of reimbursement his practice receives from the various insurers. These contracts reimburse at either a flat fee for service or a percentage less than 100% of the Medicare fee schedule. Dr. Dauer also testified to his understanding of the Medicare fee schedule and the valuation of medical procedures. The Court will not describe every statement, but Dr. Dauer clearly has an expertise in the application and workings of fee schedules, including Medicare, Workers Compensation, and Tri-Care.
With regards to PIP providers, Dr. Dauer stated he charges them a standard fee because, “. . .it doesn’t matter what I charge. And that’s the important thing about charges4 in the community, it’s the reimbursement, so you can charge anything you want, it’s what you get reimbursed.” (p.44 1.21-25). Dr. Dauer stated that PIP insurers are his highest reimbursement, however, “I don’t get a lot of PIP cases because I don’t seek out any provider. . . .” Again, when explaining the TriCare fee schedule, Dr. Dauer reiterated, “. . .but PIP is again, that’s our best payor, it always has been, but I don’t do a lot of the PIP cases.”(p.46 1.4-6), and, “I emphasize it again it’s not what you charge, it is what the reimbursement levels are, so charges are irrelevant, and in the past many providers have made a basis that if that’s what I charge it’s got to be fair number, but that’s not how health care is reimbursed in Miami-Dade, Broward County or South Florida.” (p.59 1.17-24)
Dr. Dauer also reviewed the deposition of Plaintiff’s owner Roberta Kahana in Millennium Radiology v. State Farm Insurance Company, 2012-25507SP23 (Miami-Dade County), a reimbursement matrix for the Plaintiff in Millennium Radiology LLC v. United Automobile Insurance Company 2012-24702SP23 (Miami-Dade County), and the subject bills in case 2012-883SP23. Based upon reviewing this information, Dr. Dauer was able to determine the range of charges the for the Plaintiff’s CPT codes in question. However, Dr. Dauer did not testify to this numerical range. Rather, Dr. Dauer opined that in some instances the Plaintiff was reimbursed less than what was billed to the insurance company. Dr. Dauer was not able to testify whether the Plaintiff’s charges were reasonable or not, as the Court sustained the Plaintiff’s objection when the Doctor was asked his opinion by the Defendant. Unfortunately the answer to this question, this Court believes, would establish the application of Dr. Dauer’s principals and methods to the facts on the case. As stated in §90.702, Fla. Stat. (2013),:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
This Court further finds, that after having an opportunity read the transcript provided by the Defendant, coupled with the submitted affidavit, Dr. Dauer’s opinion continues to lack the sufficient facts or data as to the charges in the PIP industry, the reimbursements in the PIP industry, and what constitutes a reasonable charge pursuant to §627.736. Dr. Dauer admits to having little contact with the PIP industry and although exhibits tremendous knowledge on the application of fee schedules, his opinion does not translate to the PIP practice. He never offers a comparison of the Plaintiff’s charge within an identifiable range of other providers’ charges in the community. Dr. Dauer continually states that the charge is irrelevant because in his experience, reimbursements are based by contractual obligations, however the charge is the exact question of fact surrounding the case sub judice. His analysis of the Plaintiff’s charge never materializes beyond the fact that he knows that the Plaintiff, at times, has accepted less than what was charged in the case he reviewed. He then associates the fact that the Plaintiff has previously accepted a lesser reimbursement, to conclude the Plaintiff’s charge is unreasonable. The rationale for this opinion is incomplete and the Court finds that the submitted testimony fails to establish prongs (2) and (3) of §90.702, Fla. Stat. (2013).
Under the Daubert standard, when an expert is relying primarily on experience, the expert must explain how that experience leads to his or her opinion, why the experience is a sufficient basis for his or her opinion, and how that experience is reliably applied to the facts. United Automobile Insurance Company v. Professional Medical Group, Inc. a/a/o Mercedes Valientes, FLWSUPP 2401VALI (11th Circuit appellate capacity) [24 Fla. L. Weekly Supp. 20a]; State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr. Inc., 2009 WL 6357793 (M.D. Fla. 2009). Dr. Dauer fails to articulate how his experience leads to his opinion of the unreasonableness of the Plaintiff’s charge, why his experience is a sufficient basis for his opinion of the Plaintiff’s charge, and how that experience is reliably applied to the facts.
The Court finds that the Plaintiff has established the non-existence of any material fact at issue with regards to reasonableness of the Plaintiff’s charge, and that the evidence offered by the Defendant is inadmissible. Thus, it is ORDERED and ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment as to reasonableness is GRANTED.
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1Two CT scans billed at $2,170.00 each.
2Ingenix and Medical Fees in the United States is a trade publication identifying the range of charges for CPT codes for regions across the United States and is admissible evidence pursuant to Florida Statute 90.803(17).
3The Plaintiff is the same in both 2012-20656SP25 and the case before this Court.
4When asked what he uses to determine a reasonable charge Dr. Dauer reiterates this point on p.48 L.22-23 “. .it’s not a matter of what we charge per se, it’s what we get reimbursed.”
