25 Fla. L. Weekly Supp. 758b
Online Reference: FLWSUPP 2508SAAVInsurance — Personal injury protection — Coverage — Medical expenses — Relatedness and necessity of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issues of relatedness and medical necessity of MRI charge where affidavit that is based solely on review of medical records either misstates or overlooks explicit findings in records — Affidavit that was filed in support of original motion for summary judgment is admissible in support of amended motion for summary judgment
BEST AMERICAN DIAGNOSTIC CENTER, INC., (Diana Saavedra), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 12-20176 (56). October 9, 2017. Betsy Benson, Judge. Counsel: Caroline Martelli, for Plaintiff. Kyle Mixson, for Defendant.
ORDER GRANTING PLAINTIFF’S AMENDEDMOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come on to be considered before the Court on September 26, 2017, on Plaintiff’s Amended Motion for Final Summary Judgment, 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, finds as follows:
On March 31, 2016, the Honorable Judge Linda Pratt entered an Order granting Plaintiff’s Motion for Summary Judgment as to the reasonableness of Plaintiff’s charges. The Court denied Plaintiff’s Motion as to the medical necessity and relatedness of Plaintiff’s services.
On July 27, 2017, Plaintiff filed its Amended Motion for Final Summary Judgment as to the medical necessity and relatedness of the Plaintiff’s services and specifically relied upon the deposition testimony of Dr. William Tejeiro in support of its Motion.
There are no affirmative defenses. Therefore, the only remaining issue for the Court’s determination is whether the Plaintiff has established the services were medically necessary and related to the accident. For the reasons set forth below, this Court finds Plaintiff has established the service was medically necessary and related to the accident.
On December 11, 2009, Plaintiff, BEST AMERICAN DIAGNOSTIC CENTER, INC., provided a cervical MRI to Diana Saavedra as a result of injuries related to her November 18, 2009 motor vehicle accident. In support of its Amended Motion for Final Summary Judgment, Plaintiff filed and relied upon the deposition transcript of Dr. William Tejeiro, the medical doctor who ordered the MRI provided to Diana Saavedra by Plaintiff, Best American Diagnostic Center.
The deposition testimony of Plaintiff’s expert, Dr. Tejeiro establishes the MRI was medically necessary and related to the accident. Pursuant to Fla. Stat. §627.732(2), “Medically necessary” refers to 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:
(a) In accordance with generally accepted standards of medical practice;
(b) Clinically appropriate in terms of type, frequency, extent, site, and duration; and
(c) Not primarily for the convenience of the patient, physician, or other health care provider.
Dr. Tejeiro attests that Diana Saavedra presented for treatment after being involved in a motor vehicle accident on November 18, 2009. Based on Ms. Saavedra’s history, complaints, and his documented examination findings, Dr. Tejeiro sent Diana Saavedra for a cervical spine MRI. Dr. Tejeiro opines that in his professional opinion, the MRI was medically necessary to rule out a condition and to properly diagnose and treat the patient and was the type of service a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that was 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 other health care provider. The evidence presented by Plaintiff as to Ms. Saavedra’s treatment meets the definition of medical necessity.
Once a party moving for summary judgment presents competent evidence to support its motion for summary judgment, that party is entitled to summary judgment unless the nonmoving party can come forward with competent evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla. 1979).
Defendant, State Farm, relied on the affidavit filed in opposition to Plaintiffs original motion for summary judgment. Defendant sought to rely upon the affidavit of Dr. Michael Propper previously filed on May 5, 2015. Plaintiff moved to strike the affidavit arguing that Fla. R. Civ. P. 1.510(c) requires the adverse party to identify, by a certain time before the hearing, the summary judgment evidence on which it intends to rely. Plaintiff cited State Farm Mut. Auto. Ins. Co. v. Figler Family Chiropractic, PA, 189 So.3d 970 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D805b] (Affirming trial court’s refusal to consider opposing party’s affidavit which contained a generic notice that the affidavit would be used “for any purpose” and granting summary judgment based on opposing party’s failure to comply with Fla. R. Civ. P. 1.510(c)). Unlike in Figler, State Farm had noticed Dr. Propper’s affidavit for the original motion for summary judgment, as opposed to the blanket ‘for any purpose’ affidavit filed in that case. The Motion is denied, and the affidavit of Dr. Propper is admitted.
However, the court does not find that the opinion of Dr. Propper creates a genuine issue of material fact on the medical necessity of Plaintiff’s services.1
Fla. Stat §627.736(7)(a) provides that when a physician is proffering an opinion on medical services based solely upon the review of the medical records, the opinion must be factually supported by the records reviewed. In other words, the reviewing physician cannot rewrite, misstate, or ignore the explicit findings contained in the records he is reviewing.
Dr. Propper’s affidavit, either overlooks or misstates what the treating records explicitly provide. Coast Pain Relief Center (Gladys Granados-Deyell) v. State Farm Mut. Auto. Ins. Co., 25 Fla. L. Weekly Supp. 200a (Broward Cty. Ct., April 12, 2017)(J. Lee) citing United Auto. Ins. Co. v. Professional Medical Group, 18 Fla. L. Weekly Supp. 501a (11th Cir. App. 2010) and United Auto v. Professional Medical Group, 17 Fla. L. Weekly Supp. 520a (11th Cir. App. 2010)(Opinion of defense expert is unreliable and affidavit is inadmissible when it fails to take into account the entirety of what the actual treatment records provide).
For example, the records the defense’s expert reviewed document an abnormal physical examination of the cervical area which included significant spasm, loss of motion, multiple trigger points, tingling into the forearms, diminished reflexes in both upper extremities of both biceps and triceps and decreased grip strength in the patient’s dominant right hand. Nevertheless, Dr. Propper avers that the record revealed a “normal” examination. Dr. Propper does not acknowledge or discuss any of the treating physician’s findings referenced above. In fact, the majority of Dr. Propper’s affidavit does not relate to the content of the records themselves, rather, it shifts focus to what he asserts is inadequate record keeping. At hearing, it was uncontroverted that Dr. Propper had not inquired as to the completeness of the records he reviewed. Moreover, an examination of the records attached to his affidavit reveals that Dr. Propper’s conclusions are unsupported. The records he did have are clear, typewritten, precise, and detailed. The evaluations of the patient detail a present history, past history, detailed physical examination, diagnosis, and specific treatment plan. The records were adequate, contrary to Dr. Propper’s opinion.
Additionally, Dr. Propper’s affidavit focuses his determination of medical necessity on his puzzling assertion that there was no separate prescription for the MRI scan. He repeats this over a dozen times in his affidavit. Nevertheless, the records attached to his affidavit contain a copy of the very prescription he claims does not exist. Dr. Propper’s affidavit is based on the false premise that if medical records are (in his mind) inadequate, or do not support the level of service billed by the referring physician (not the Plaintiff), then the MRI cannot be necessary.
Dr. Propper’s affidavit omits any discussion of the patient’s documented physical examination findings and state that a reasonably prudent physician, who was presented with these findings, would not have ordered the test. In order to oppose the Plaintiff’s case for medical necessity, the opposing expert is required to opine that no reasonably prudent physician, acting in accordance with generally accepted standards of medical practice, would have ordered this test to diagnose this injury. Dr. Propper makes no such assertion. Thus, the only reasonable conclusion to be drawn from Dr. Propper’s affidavit is that he failed to take into account the elements of the statutory definition of medical necessity or otherwise apply the proper legal standard.
It is well settled that the conclusion of an expert witness based on facts or inferences not supported by the evidence in a case has no evidential value. Schindler Elevator Corp. v. Carvalho, 895 So.2d 1103 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D226b]. When an expert’s opinion is based on speculation and conjecture, not supported by the facts, or not arrived at by any recognized methodology, the testimony will be stricken. M.A. Hajianpour, MD., P.A. v. Khosrow Maleki, P.A., 932 So.2d 459 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1524c]. Moreover, no weight may be accorded an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning. Division of Administration v. Samter, 393 So.2d 1142, 1145 (Fla. 4th DCA 1981). The opinion of Dr. Propper similary fails to state an opinion based on facts.
For the reasons stated above, the Defendant has not come forward with any competent, admissible evidence to rebut Plaintiffs showing that the service provided to Diana Saavedra was medically necessary and related to the accident.
Accordingly, it is hereby ORDERED and ADJUDGED that Plaintiffs Amended Motion for Final Summary Judgment is GRANTED.
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1Dr. Propper provides no opinion as to whether the service provided by Plaintiff was related to the accident. Plaintiff’s expert established the service was related to the accident. Defendant did not set forth any argument or summary judgment evidence to contradict Plaintiff’s argument and evidence establishing the services were related to the accident. Therefore, Dr. Propper’s affidavit does not create a question of fact as to this issue.
