25 Fla. L. Weekly Supp. 200a
Online Reference: FLWSUPP 2502GRANInsurance — Personal injury protection — Coverage — Medical expenses — Medically necessary treatment — Summary judgment — Opposing affidavit does not preclude entry of summary judgment in favor of medical provider on issue of medical necessity of treatment provided after independent medical examination cutoff date where IME physician formed opinion that treatment was not necessary based solely on IME and did not review medical records relating to disputed treatment — Even if affiant’s opinion could properly be based on incomplete records, his conclusion that lack of improvement means that treatment was not medically necessary suggests that he did not apply statutory definition of medical necessity
COAST PAIN RELIEF CENTER, (a/a/o Gladys Granados-Deyell), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-13195 COCE (53). March 31, 2017. Final Judgment April 12, 2017. Robert W. Lee, Judge. Counsel: Tara L. Kopp, West Palm Beach, and Angelica Torrents, Coral Gables, for Plaintiff. Luis N. Perez, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S AMENDED MOTIONFOR FINAL SUMMARY JUDGMENT AS TOTHE ISSUE OF MEDICAL NECESSITY
THIS CAUSE came before the Court on March 30, 2017 for hearing of the Plaintiff’s Amended Motion for Final Summary Judgment as to the Issue of Medical Necessity, and the Court’s 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:
The issue in this case is whether the treatment rendered to Gladys Granados-Deyell was reasonable, related to the accident, and medically necessary. Pursuant to pretrial stipulations and previous court rulings, the sole remaining issue in this case is the medical necessity of treatment rendered from March 19, 2014 to August 12, 2014, treatment which occurred after the “IME cutoff” in this case. After hearing, the Court took the matter of medical necessity under advisement.
The Defendant has timely submitted the affidavit of Leonard M. Holtzman, D.C. in an effort to contravene the Plaintiff’s prima facie case set forth in the Plaintiff’s filed supporting affidavit. Dr. Holtzman is the chiropractic physician who examined Ms. Granados-Deyell on March 18, 2014 on behalf of the insurer and determined that she was no longer in need of any chiropractic treatment. Three years later, in rendering his opinion on the actual treatment that took place after March 18, 2014, the affidavit reveals that Dr. Holtzman did not review any of the medical records for this subsequent treatment. His opinion set forth in his affidavit derives solely from his IME examination, although he executed this affidavit more than three (3) years after his examination. Additionally, although State Farm recommenced payment of chiropractic charges from September 9, 2014-January 15, 2015 for the same modalities in the timeframe of treatment at issue in this case, Dr. Holtzman does not mention this fact at all, again suggesting to the Court that he was unaware of these records.
In dealing with the issue of an expert opining on a treating physician’s course of treatment, the Eleventh Circuit sitting in its appellate capacity noted that “[i]f the doctor is not provided with medical records, he cannot contest RRN.” United Automobile Ins. Co. v. Professional Medical Group, 18 Fla. L. Weekly Supp. 501a (11th Cir. App. 2010). An expert physician’s affidavit opposing a summary judgment motion is insufficient if it is based on incomplete medical records. See United Automobile Ins. Co. v. Professional Medical Group, 17 Fla. L. Weekly Supp. 520a (11th Cir. App. 2010). The Court rejects as unreliable Dr. Holtzman’s methodology in proffering an opinion on the necessity of chiropractic treatment when he has not reviewed the available medical records dealing with that exact treatment, particularly when it is not far-fetched to imagine that a physician objecting to treatment before it occurs might change his or her mind when confronted with the records of that precise treatment when it has taken place. See Fla. Stat. §90.702(2) (2016).
Even if the Court were to find that Dr. Holtzman’s opinion could properly be based on incomplete records, Dr. Holtzman’s conclusion — that the lack of improvement means that the treatment is not medically necessary (Aff. ¶16) — suggests to the Court that Dr. Holtzman used the wrong standard for determining “medical necessity” rather than the standard provided by the Florida Legislature in the PIP statute. See Fla. Stat. §627.732(2). See also Martinez Chiropractic Center, Inc. v. State Farm Mutual Automobile Ins. Co., 24 Fla. L. Weekly Supp. 190a (Broward Cty. Ct. 2016). As noted by Judge Kanner in his opinion in Martinez Chiropractic,
the only reasonable conclusion to be drawn from his testimony is that [the defendant’s expert] failed to take into account the elements of the statutory definition of medical necessity or otherwise apply the proper legal standard for regarding medical necessity.
Id. The same is true in the instant case. Accordingly, it is hereby
ORDERED and ADJUDGED that the Plaintiff’s Amended Motion for Final Summary Judgment is GRANTED. As this Order disposes of the remaining issues in the case, the Plaintiff shall submit a proposed Final Judgment to the Court directly to Court chambers for consideration.
__________________FINAL JUDGMENT FOR PLAINTIFF
THIS MATTER having come before the Court on March 30, 2017, wherein this Court entered an Order Granting Plaintiff’s Amended Motion for Final Summary Judgment as to the Issue of Medical Necessity thereby disposing of the remaining issues in this case.
IT IS HEREBY ORDERED AND ADJUDGED that FINAL JUDGMENT is GRANTED in favor of the Plaintiff, COAST PAIN RELIEF CENTER (a/a/o Gladys Granados-Deyell), in the sum of $2,704.80 representing the Personal Injury Protection and Medical Payments benefits owed by Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, in accordance with the fee schedule rates set forth in F.S. 627.736(5)(a)1, for treatment rendered from March 19, 2014 through August 12, 2014, plus pre-judgment interest in the amount of $327.71 (which is interest for 931 days at 4.75%). Defendant shall also pay post judgment interest at the rate of 4.91% per year, for which let execution issue. All other issues in this matter have been resolved with the exception of Plaintiff’s claim for fees and costs.
IT IS FURTHER ORDERED AND ADJUDGED that this Court reserves jurisdiction to award the Plaintiff reasonable attorney’s fees and costs pursuant to Fla. Stat. 627.736 and Fla. Stat. 627.428, as the prevailing party.
