25 Fla. L. Weekly Supp. 912a
Online Reference: FLWSUPP 2510RESTInsurance — Personal injury protection — Coverage — Medical expenses — Summary judgment — Reasonableness of charges — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges — Affidavit opining that nothing in excess of 80% of 200% of Medicare fee schedules can ever be reasonable is inadmissible “pure opinion” based on nothing but expert’s own experience
MARGATE PAIN AND REHABILITATION, INC., a/a/o Johana Restrepo, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. COCE 13-012278 (52). December 1, 2017. Giuseppina Miranda, Judge. Counsel: Majid Vossoughi, Majid Vossoughi, P.A., Miami, for Plaintiff. Gregory Willis, Cole, Scott & Kissane, P.A., Plantation, for Defendant.
FINAL JUDGMENT IN FAVOR OF PLAINTIFFAND ORDER GRANTING MOTION FORSUMMARY FINAL JUDGMENT
THIS CAUSE came before the Court on May 1, 2017 on Plaintiff’s Motion for Summary Final Judgment. As set forth below, the sole remaining issue in this case is whether the treatment rendered to Johana Restrepo was reasonable in price.
The parties were represented by counsel at the hearing who presented arguments to this Court. Gregory Willis, Esq. appeared on behalf of the Defendant and Majid Vossoughi, Esq. and David J. Mannering, Esq. appeared on behalf of the Plaintiff.
The Court having reviewed Plaintiff’s Motion for Summary Final Judgment with supporting evidence, Defendant’s expert affidavit in opposition, the entire Court file, the relevant legal authorities, and having heard argument from counsel and being otherwise sufficiently advised in the premises, hereby makes the following factual findings and conclusions of law, and enters this Order GRANTING Plaintiff’s Motion for Summary Final Judgment and Final Judgment in Favor of Plaintiff.BACKGROUND AND FACTUAL FINDINGS
Johana Restrepo was involved in an automobile accident on April 4, 2009 and treated with Plaintiff from April 30, 2009 through May 20, 2009 in relation to injuries sustained in said accident.
Plaintiff, as assignee of a policy of insurance issued by Defendant, submitted its bills in the amount of $3,650.00 for treatment of Johana Restrepo to Defendant for payment of Personal Injury Protection (“PIP”) benefits.
Defendant processed Plaintiff’s claim for payment of PIP benefits and tendered payment to Plaintiff in the amount of $2,128.08.
On July 11, 2013 Plaintiff, as the assignee of Johana Restrepo, filed suit for PIP benefits alleging breach of contract by Defendant.
Defendant’s statutorily mandated Explanations of Review pursuant to Fla. Stat. 627.736(4)(b) reflect that in processing Plaintiff’s claim the Defendant utilized the fee schedule limitation contained in Fla. Stat. 627.736(5)(a)2 as their exclusive basis for reimbursement of Plaintiff’s claim (although same was not specifically incorporated in Defendant’s Policy).
On April 6, 2016 Plaintiff filed depositions transcripts of Miriam Encarnacion, the senior director of health information management with Mitchell International, taken on November 19, 2012, July 17, 2013, and January 16, 2014.
These transcripts collectively reflect that Mitchell International’s “Decision Point” software was used by Defendant to prepare its Explanations of Review and that it was only programmed to process bills pursuant to the fee schedule set forth in Fla. Stat. 627.736(5)(a)2.
On April 8, 2016 Plaintiff filed an affidavit from Jason Morris Levine, D.C. with respect to the issue of related and medically necessary care and treatment rendered to Johana Restrepo.
In his affidavit, Dr. Levine testifies that the care and treatment provided by the Plaintiff from April 30, 2009 through May 20, 2009 was medically necessary and related to the injuries sustained by Johana Restrepo in an automobile accident that occurred on April 4, 2009.
On April 20, 2016 Plaintiff filed an affidavit from Craig Dempsey, its chief compliance officer, records custodian, and corporate representative with respect to the issue of patient billing and charges.
In his affidavit, Mr. Dempsey testifies that the charges for treatment rendered by the Plaintiff are reasonable charges within the range of usual and customary charges for similar care in the Broward County geographical area. A copy of the medical bills submitted to Defendant reflecting the treatment rendered to Johana Restrepo are attached to Mr. Dempsey’s affidavit and were also attached to his Declaration of Records Custodian filed with this Court on February 14, 2015.
On April 26, 2016 Plaintiff filed its Motion for Summary Final Judgment as to reasonableness, relatedness, and medical necessity of its care and treatment relying on affidavit testimony from Dr. Levine and Mr. Dempsey.
On October 10, 2016 the Court held its initial hearing on Plaintiff’s Motion for Summary Final Judgment and entered an Order Granting said motion as to issues of relatedness and medical necessity of care and treatment rendered by the Plaintiff. As to the issue of reasonableness of Plaintiff’s charges, the Court continued the hearing pending a deposition of Plaintiff’s corporate representative.
On November 28, 2016 and subsequent to the initial hearing on Plaintiff’s Motion for Summary Final Judgment, Defendant filed an affidavit from Michael W. Mathesie, D.C. No documents other than a curriculum vitae are attached to this affidavit. The sum and substance of Dr. Mathesie’s opinion is that nothing above 200% of Medicare Fee Schedule rate would ever be a reasonable charge for a chiropractor’s services.
On April 3, 2017 the Court held a second hearing on Plaintiff’s Motion for Summary Final Judgment as to the sole remaining issue of reasonableness of Plaintiff’s charges. At the hearing the parties ran out of time and, accordingly, the matter was re-scheduled for April 17, 2017.
On April 17, 2017 the Court held a third hearing on Plaintiff’s Motion for Summary Final Judgment as to the sole remaining issue of reasonableness of Plaintiff’s charges. At the hearing the parties presented arguments regarding the In re: Amendments to Florida Evidence Code, 2017 WL 633770 (Fla. February 16, 2017) [42 Fla. L. Weekly S179a]and the applicability of the Daubert standard (Fla. Stat. 90.702 and Fla. Stat. 90.704). The Court held that the Daubert standard is applicable to the instant matter unless declared unconstitutional.
On May 1, 2017 the Court held a fourth and final hearing on Plaintiff’s Motion for Summary Final Judgment. The sole remaining issue in this case is whether the treatment rendered to Johana Restrepo was reasonable in price.LEGAL ANALYSISSummary Judgment Standard
Florida Rule of Civil Procedure 1.510(c) provides that “judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law”.
“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law”. Volusia County v. Aberdeen At Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a] (citing Menendez v. Palms West Condominium Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1317a].
The Plaintiff’s burden of proof in establishing its prima facie case to recover PIP benefits requires proof that the plaintiff’s medical services are related to the subject accident, medically necessary and that the bills for said services are reasonable. See Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a].Reasonableness of Plaintiff’s Charges
As it pertains to a medical provider’s burden in establishing reasonableness of its charges, the 17th Judicial Circuit, sitting in its appellate capacity, has held that a medical provider establishes a prima facie case that its bills are reasonable by offering testimony through a qualified witness that its prices are based on years of personal experience, consideration of fee and coding reference books, and the usual and customary charges of other medical providers in the community for the same procedure codes. United Auto. Ins. Co. v. Hallandale Open MRI, LLC. a/a/o Antonette Williams, 21 Fla. L. Weekly Supp. 399d (Fla.17th Cir. App. December 11, 2013); Cert. Den., 145 So.3d 997 (Fla. 4th DCA 2014).Affidavit of Craig Dempsey
As to reasonableness of Plaintiff’s charges, Plaintiff provided affidavit testimony from Craig Dempsey, its chief compliance officer, records custodian, and corporate representative.
Mr. Dempsey testifies that he has personal knowledge regarding usual and customary charges and payments accepted by the Plaintiff and that the amount billed by the Plaintiff represents its usual and customary charges for services rendered. He testifies that Plaintiff accepted as its usual and customary payment from no-fault insurers eighty percent of the amounts billed on policies that did not contain medical payments coverage and one hundred percent of the amounts billed on policies containing medical payments coverage.
Mr. Dempsey further testifies that at all relevant times Plaintiff was not a Medicare or Medicaid provider and did not treat or accept patients under either program, was not a Worker’s Compensation provider, was not a participant in any HMO or PPO managed care plans, and rendered treatment primarily to patients that have been involved in automobile accidents and primarily billed PIP insurance carriers under Florida’s No-Fault act.
Mr. Dempsey testifies that the charges for treatment rendered by the Plaintiff are reasonable charges within the range of usual and customary charges for similar care in the Broward County geographical area.
Mr. Dempsey’s affidavit reflects that he has been in the medical billing field since 1979, operated two billing companies, was responsible for preparing the medical bills in this case, and is familiar with the range of usual and customary charges for chiropractic treatment and what other medical providers charge in Broward County. Mr. Dempsey’s affidavit outlines his methodology which involves comparing Plaintiff’s charges to the range of charges of other medical providers in the community. His affidavit outlines the data utilized in formulating his opinion, a copy of which was produced to Defendant along with his affidavit.
In the present case, Plaintiff has met its prima facie burden to establish that its charges are reasonable.Admissibility of Expert TestimonyFla. Stat. §90.702
The admissibility of expert testimony is governed by Florida Statute §90.702 (2013) which, in July 2013 was amended to adopt the Daubert standard, established by the United States Supreme Court in Daubert v. Merrel Dow, 509 U.S. 579 (1993).
The amended statute, in pertinent part, provides that:
[i]f 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.
Under the amended statute, the proponent of the opinion must demonstrate to the Court that the expert’s opinion is “based upon sufficient facts or data.” Pan Am Diagnostics, Inc. v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 937a (Broward County Court 2013); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The trial judge is assigned the role of “gatekeeper” to ensure that an expert’s testimony is relevant and reliable. Daubert v. Merrel Dow, 509 U.S. 579, 590 (1993).Affidavit of Michael Mathesie, D.C.
The sum and substance of Dr. Mathesie’s affidavit testimony is that nothing in excess of Defendant’s reimbursement equal to 80% of 200% of Medicare Part B fee schedule can ever constitute a reasonable charge for services rendered by the Plaintiff. As set forth below, Dr. Mathesie’s opinion cherry picks data and methodology to advance a litigation position maintained by Defendant.
Dr. Mathesie formulates his ultimate opinion premised on:
a. what his practice accepts as reimbursement for chiropractic services,
b. PIP insurers’ trend post 2008 to systematically reimburse chiropractic services at 200% of Medicare Part B,
c. reasonableness of State Farm’s reimbursement, and
d. negotiated and approved payment schedules of Health insurers including HMOs and PPOs (80% – 140% of Medicare) and reimbursement of commercial insurers (80% – 140% of Medicare).
This Court has previously rejected Dr. Mathesie’s opinion on issue of reasonableness of charges as insufficient and failing to meet the test of admissibility under Fla. Stat. 90.702. See Tri-County Accident Clinic, LLC (Dana Jackson) v. State Farm Mutual Automobile Insurance Company, Case No., 13-8806 COCE 52 (Fla. 17th Circuit, Broward County, Judge Miranda, July 13, 2016).
Consistent with its prior ruling, this Court holds that Dr. Mathesie’s testimony on issue of charges is insufficient to meet the test of admissibility under Fla. Stat. 90.702 and, accordingly, fails to create a material issue of fact as to reasonableness of Plaintiff’s charges.
Dr. Mathesie’s opinion is “pure opinion” testimony which does not appear to be based upon anything other than his own experience which is specifically precluded under Fla. Stat. §90.702. Perez v. Bellsouth Telecommunications, Inc., 138 So.3d 492 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b] (“expert testimony that might otherwise qualify as ‘pure opinion’ testimony is expressly prohibited”).
Since Dr. Mathesie accepts an amount equal to or less than 80% of 200% of Medicare Part B as reimbursement for chiropractic services rendered by his office he formulates a “pure opinion” that reimbursement rate of PIP insurers equal to 80% of 200% of Medicare Fee is viewed as the maximum charge that can be deemed reasonable in the community. He then makes a quantum leap and concludes that Plaintiff’s charges are “unreasonable” since “Plaintiff’s charges exceed the usual and customary reimbursement levels in the community.” (Dr. Mathesie affidavit, ¶ 37). Dr. Mathesie’s methodology is flawed since the relevant inquiry is not Defendant’s reimbursements but rather the reasonableness of Plaintiff’s charges. See New Smyrna Imaging, LLC. v. State Farm Mutual Auto Ins. Co., 20 Fla. L. Weekly Supp. 671a (Volusia Cty. Ct. 2013 (Sanders, J.)). After all, the question posed to a jury in a PIP case concerns prices and specifically whether the provider’s charges are reasonable.
Testimony or an argument that fee schedule payments standing alone without consideration of reasonableness of amounts charged does not create a factual issue as to reasonableness of a medical provider’s charges. See Health Diagnostics of Ft. Lauderdale, LLC (John Winn) v. USAA Cas. Ins. Co., 20 Fla. L. Weekly Supp. 292b (Broward County Court 2012)(Judge DeLuca); Hallandale Open MRI, LLC (Tramaine Morgan) v. State Farm, 20 Fla. L. Weekly Supp. 683a (Broward County Court 2013)(Judge Schiff); Hallandale Open MRI, LLC (Mustafa Nassar) v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp. 587a (Broward County Court 2012)(Judge DeLuca); New Smyrna Imaging, LLC (Francis Horgan) v. State Farm, 20 Fla. L. Weekly Supp 671a (Broward County Court 2012)(Judge Sanders); Hallandale Open MRI, LLC (Carnes Vilatte) v. United Automobile Insurance Company, 22 Fla. L. Weekly Supp. 851a (Fla. 17th Cir., Broward County Court, Judge Miranda, January 13, 2015)(disallowing testimony of a defense expert noting that his knowledge as to what Medicare and Health Insurers allow is insufficient to qualify his opinion as an expert on issue of charges).
Clearly, the statute provides that it is the “charges and payments accepted by the provider involved in the dispute” that is relevant to a reasonableness of charges inquiry and not Dr. Mathesie’s charges and payments he accepts. Instead of considering the “charges and payments accepted” by Plaintiff, Dr. Mathesie considers his own usual and customary charges and what his office accepts in consideration for like services provided by his office in formulating his purported pure opinion that Plaintiff’s charges are “unreasonable”. Dr. Mathesie’s methodology, as applied to the facts of this case is flawed in that he completely disregards the following in formulating his purported pure opinion in this case:
a. that the Plaintiff, unlike his office, did not treat or accept patients under either Medicare or Medicaid programs;
b. that the Plaintiff, unlike his office, was not a Worker’s Compensation provider;
c. that the Plaintiff, unlike his office, was not a participant in any HMO or PPO managed care plans;
d. that the Plaintiff, unlike his office, accepts as its usual and customary payment from no-fault insurers eighty percent of the amounts billed on policies that do not contain medical payments coverage and one hundred percent of the amounts billed on policies that do not contain medical payments coverage.
e. that the amounts billed by the Plaintiff represent Plaintiff’s usual and customary charges for patient services.
Based on the foregoing, this Court holds that Dr. Mathesie’s opinion pertaining to reasonableness of charges constitutes inadmissible affidavit testimony and fails to create a disputed issue of material fact on the issue of reasonableness of Plaintiff’s charges.
Accordingly, based on this Court’s analysis set forth above, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Final Judgment is hereby GRANTED as to the sole remaining issue of reasonableness of Plaintiff’s charges.
IT IS FURTHER ADJUDGED that Plaintiff, MARGATE PAIN AND REHABILITATION, INC., shall recover from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, the sum of $791.92 as principal and prejudgment interest in the sum of $542.06, for a total sum of $1,333.98 which shall bear interest at the statutory, for which let execution issue. Plaintiff is entitled to an award of attorney’s fees and costs associated with this action and the Court reserves jurisdiction to determine the amount of same.
