25 Fla. L. Weekly Supp. 554b
Online Reference: FLWSUPP 2506CHACInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affiant has not established nexus to county in which services were provided and based opinion solely on reimbursements at his own facilities — Fact that Medicare and health insurance reimburse less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charges
A PLUS MEDICAL AND REHAB CENTER a/a/o Asuncion Chacon, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 13-4851-SP-25. August 4, 2017. Patricia Marino Pedraza, Judge. Counsel: Walter A. Arguelles, Arguelles Legal, P.L., Miami, for Plaintiff. Dutton Law Group, P.A., Miami, for Defendant.
ORDER ON PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on the 17th day of July, 2017 on Plaintiff’s Motion for Summary Judgment regarding RRN. The parties have stipulated that the reasonableness, relatedness and medical necessity of the treatment are not at issue. Therefore, the Court shall only address the motion as to the reasonableness of Plaintiff’s charges. Upon argument of counsel, review of the record evidence, and case law, it is ORDERED AND ADJUDGED as follows:
1. In support of its Motion, the Plaintiff filed the affidavits of Dr. Paul Wand, Clara Perez, amended affidavit of Dr. Paul Wand, and the HCFA’s for the bills at issue. This record evidence has established proof that the charges billed by the Plaintiff were reasonable, therefore, the Court finds that the Plaintiff has met their prima facie showing regarding reasonableness of charges. The burden now shifts to the Defendant to establish a question of fact.
2. In opposition to the Plaintiff’s Motion, the Defendant filed the affidavit of Dr. Michael S. Propper. Although Dr. Popper asserts that the basis for his opinion is based upon his experience and familiarity in the field of medicine and radiology in the Broward County Community, during the time of treatment (November 2008- February 2009), Dr. Propper, according to his CV, was exclusively working in Palm Beach County. This discrepancy alone fails to provide a sufficient nexus to Broward County during the relevant time period. Because charges and reimbursements for medical services vary widely throughout the State of Florida based upon the location of the provider, it is crucial for an expert to establish the geographic applicability of the opinion the expert is giving. Further, although he states that he has considered various 627.736 (5)(a)1 factors, it appears that Dr. Propper bases his opinion regarding reasonableness on the charges and payments accepted by the “unnamed” practices that he has been associated with (paragraphs 18, 19, 22), HMO and PPO contracts that his facilities have had with general insurance companies (paragraphs 17,18, 19), and additionally opines that the “real market rate” or “reasonable amount” for services are established by the reimbursements from Medicare, Medicaid, Worker’s Compensation, and HMO’s and PPO’s. Dr. Propper fails to consider the evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and fails to consider reimbursement levels in the community other than the reimbursements at his own facilities.
3. The fact that Medicare and health insurance reimburse less than the amount billed by the Plaintiff, by itself, is not sufficient to create a question of fact that the Plaintiff’s charges are unreasonable. Medicare is not insurance but is instead social welfare program and is not an insurance or reimbursement plan. Atkins v. Allstate Insurance Company, 382 So.2d 1276 (Fla. 3rd DCA 1980). Numerous courts sitting in their appellate capacity have determined that Medicare, HMO and PPO reimbursements are not relevant as to the issue of reasonableness of charges. See Hialeah Medical, Inc. a/a/o Ana Lexcano v. United Automobile Insurance Company, 21 Fla. L. Weekly Supp. 487b (11th Cir. App. 2013); Virtual Imaging Services, Inc., a/a/a Framcoise Leon v. State Farm Mutual Automobile Insurance Company, 23 Fla. L. Weekly Supp. 515a (11th Cir. App. 2015), Virtual Imaging Services, Inc. a/a/o Jacqueline Perez, Rolando Santana and Alberto Galindo Alfonso v. United Automobile Insurance Company, 23 Fla. L. Weekly Supp. 304a (11th Cir. App. 2015).
4. Finally, it is undisputed that the Defendant paid the charges at 200% of the Medicare Part B Fee Schedule, although it had not properly incorporated this method into its policy.
5. Based upon the findings above, the Court finds that the Defendant did not meet its burden to establish a genuine issue of material fact as to the reasonableness of the Plaintiff’s charges. Therefore, this Court grants Summary Judgment in favor of the Plaintiff for reasonableness of charges.
