25 Fla. L. Weekly Supp. 123b
Online Reference: FLWSUPP 2501CASTInsurance — Personal injury protection — Coverage — Medical expenses — Relatedness and necessity of treatment — Summary judgment — Opposing affidavit filed by insurer does not preclude partial summary judgment in favor of medical provider on issues of relatedness and medical necessity of treatment where opinion of affiant who did not review insured’s medical history, examination results, treatment plan or other clinical records is not based on sufficient facts or data
AMERICAN HEALTH & REHABILITATION CENTER, INC. a/a/o Juan Castro, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 08-008852 (51). September 16, 2016. Nina W. Di Pietro, Judge. Counsel: Andrea L. Jakob, The Law Offices of Andrea L. Jakob, PA, Davie, and Emilio R. Stillo, for Plaintiff. Rashad El-Amin, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT AS TORELATEDNESS AND MEDICAL NECESSITY
THIS CAUSE having come on to be heard on August 16, 2016 regarding Plaintiff’s Motion for Partial Summary Judgment as to Relatedness and Medical Necessity (hereinafter “Plaintiff’s Motion” or “Motion”), and the Court having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
In this PIP case, Plaintiff’s Motion alleges that there is no dispute of material fact regarding the relatedness and medical necessity of the treatment provided by Plaintiff, American Health & Rehabilitation Center, to Defendant, United Automobile Insurance Company’s, insured, Juan Castro, and therefore these issues are ripe for summary judgment. In support of its Motion, Plaintiff filed the affidavit of Derrick Goetz, D.C. (hereinafter “Dr. Goetz”), the treating chiropractic physician for Juan Castro. Upon review of this affidavit, as well of review of the attached HCFA Forms and various medical records for the treatment provided to Juan Castro, the Court finds that Plaintiff has met its burden of establishing that the treatment rendered to Mr. Castro was related to the June 27, 2007 accident at issue and that the treatment was medically necessary.
In an effort to contravene the Plaintiff’s prima facie case, Defendant filed the deposition transcript of Don Morris, D.C. (hereinafter “Dr. Morris”). As Dr. Morris is providing his expert opinion on the issues of relatedness and medical necessity, it must withstand the scrutiny Section 90.702, Florida Statutes (2013), which provides:
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.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Based upon Dr. Morris’ deposition testimony detailing his educational background, his status of having been a chiropractic physician with a specialty in orthopedics since 1980, and his other certifications, the Court finds that Dr. Morris is qualified by knowledge, experience, and education in the field of chiropractic medicine. Whether Dr. Morris can give expert testimony regarding the relatedness and medical necessity of the treatment turns on whether sub-sections (1), (2), and (3) of Fla. Stat. §90.702 are satisfied. More specifically, “the subject of an expert’s testimony must be ‘scientific knowledge.’ ” Perez v. Bell South Telecommunications, Inc., 138 So.3d 492, 498 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b], quoting Daubert at 590. “In order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method.” Id. In other words, Dr. Morris’ testimony must be genuinely scientific rather than “unscientific speculation offered by a genuine scientist.” Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir. 2014) [25 Fla. L. Weekly Fed. C416a].
Beginning on page 13 of the transcript, Dr. Morris states that he had not seen any reports detailing an initial examination of the patient or noting that there was a motor vehicle crash1. Dr. Morris further testified on page 38 of the transcript that he was neither provided with, nor had reviewed, Dr. Goetz’s initial examination, patient history, or other clinical records. Beginning on page 14 of the transcript, Dr. Morris says that the records he did review lacked medical information and were otherwise insufficient2. Finally, on page 32 of the transcript, Dr. Morris makes a conclusory statement that he did not find the treatment at issue to be related to the June 27, 2007 accident or medically necessary.
Despite their existence dating back to 2007, Dr. Morris did not review Dr. Goetz’s records which clearly describe the details relayed to him by Juan Castro regarding the June 27, 2007 accident, Juan Castro’s medical history, examination results, Dr. Goetz’s treatment plan, etc. This information would be absolutely necessary in order to make a determination of, and give an opinion regarding, relatedness and medical necessity. Dr. Morris’ testimony does not satisfy the first sub-section of Fla. Stat. §90.702, the requirement that the testimony is based upon sufficient facts or data. Based upon this, the Court finds the Defendant has not established Dr. Morris’ testimony is in compliance with Section 90.702 Florida Statutes (2014) or Daubert and its progeny, and therefore does not create an issue of material fact or contravene Plaintiff’s evidence regarding relatedness or medical necessity.
ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment as to Relatedness and Medical Necessity is Granted.
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1Dr. Morris’ specifically stated that he did not see a clinical document that discussed a motor vehicle crash, but acknowledged that the medical bills he reviewed refer to the date of the accident as the first date of symptom.
2Several trial courts have ruled, and this Court agrees, that an argument or inference of deficient medical records does not correlate to evidence of a lack of medical necessity for the treatment billed. See Nob Hill Chiropractic a/k/a Michael J. Cohen DC PA (a/a/o Kenrick Grant) v. State Farm Mutual Automobile Insurance Co., 21 Fla. L. Weekly Supp. 195a (Broward Cty. Ct. 2013; Priority Medical Centers, LLC (a/a/o Arlene Robinson-Rampone) v. State Farm Fire and Casualty Co., 21 Fla. L. Weekly Supp. 201b (Broward Cty. Ct. 2013).
