25 Fla. L. Weekly Supp. 89a
Online Reference: FLWSUPP 2501RIDIInsurance — 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 medical provider’s charge where affidavit is self-serving, conclusory, devoid of sufficient facts or data, is based on inadmissible hearsay and lacks reliable principles — Fact that Medicare, HMOs and PPOs pay less than amount billed by provider does not create factual issue as to reasonableness of charge
MIAMI DADE COUNTY MRI, CORP. (a/a/o Hank Ridings) Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 13-1896 SP 23 (06). May 2, 2016. Spencer Multack, Judge. Counsel: Kenneth J. Dorchak, Buchalter, Hoffman, and Dorchak Law Firm, North Miami, for Plaintiff. Rashad El Amin, for Defendant.
ORDER GRANTING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT
This matter having come before the Court on his March 30, 2016 on the Plaintiff’s Motion for Summary Judgment, and after having heard the argument of counsel present and being fully advised of the premises thereof, the Court finds:
1. Hank Ridings was involved in an automobile accident on 1/28/2009 and at that time he was covered by a policy of insurance issued by the Defendant which policy provided for Personal Injury Protection benefits. On 2/09/2012 the Plaintiff provided medical services to Hank Ridings. By way of an assignment of benefits the Plaintiff submitted its bill in the amount of $165.95 for payment by the Defendant. Defendant paid the amount of $43.48 which payment represents the amount payable under the permissive payment limitations of Section 627.736(5)(a)(2)(f), Fla. Stat. Plaintiff has filed suit seeking payment in the amount of $189.00 which amount represents 80% of the amount billed less the amounts paid by the Defendant.
The Plaintiff has filed the affidavit of Dr. Raymond Ruszkowski, D.C. in support of the medical necessity and relatedness of the subject services. At hearing the Defendant stipulated that the subject services were medically necessary and related to the subject accident. Therefore, the only issue remaining is whether the subject charges were reasonable.
On the issue of the reasonableness of the charges the Plaintiff has provided the affidavit of Llina Milian, the Plaintiff’s billing manager, who states that the charges submitted to the Defendant represent the Plaintiff’s usual and customary charge for which it has received reimbursement from PIP insurers without reduction, that the Plaintiff does not bill or otherwise receive payment for the subject services from Medicare, HMOs or PPOs or other third party payors. In further support of the Plaintiff’s motion as to reasonableness the Plaintiff has filed the Defendant’s response to request for admissions wherein the Defendant admitted that the Defendant has received bills from providers other the Plaintiff for the same CPT codes where the amount charges was the same or greater than that billed by the Plaintiff which demonstrates that the Plaintiff’s charges are within the range of usual and customary charges in the community for the subject services. Additionally, in such request for admissions the Defendant admitted that it had paid the Plaintiff without reduction for the same CPT codes at issue. The Plaintiff has also filed portions of the trade Publication know as Medical Fees in the United States which publication demonstrates that the Plaintiff’s charges are within the range of reported usual and customary charges for the subject services. Such publication is admissible under 90.803(17), Fla. Stat. The Plaintiff has cited several cases wherein such publication has been cited by both medical providers and insurers as being used and relied upon in the medical billing industry.
A Plaintiff’s prima facie showing of the reasonableness of its charges can be established by merely presenting the medical bill produced for the service at issue, along with testimony that the patient received the treatment in question. See A.J. v. State, 677 So.2d 935 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; Iowa Mutual Nat’l Ins. Co. v. Worthy, 447 So.2d 998 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409 (Fla. 1st DCA 1979); State Farm Mutual Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a (11th Cir. Ct. 2004) (appellate capacity). As noted by the Fourth DCA, “[A] medical bill constitutes the provider’s opinion of a reasonable charge for the services.” A.J., 677 So.2d at 937. A plaintiff may, but is not required to, produce an expert witness to establish the reasonableness of its charges. East West Karate Assn, Inc. v. Riquelme, 638 So.2d 605 (Fla. 4th DCA 1994). The Court finds that the Plaintiff has met its prima facie burden as to the reasonableness of the charges under the provisions of Section 627.736(5)(a)(1), Fla. Stat. See United Automobile Insurance Company v. Hallandale Open MRI, LLC., 17th Cir. Court App. Div. (2013) — Section 627.736(5)(a)(1), Fla. Stat., does not mandate consideration of every factor when determining a reasonable amount and provider met burden by showing that submitted charges were provider’s usual and customary charge and that the affiant had knowledge of payments accepted by the provider for the same procedure.
In opposition in opposition to the Plaintiff’s motion the Defendant has filed the affidavit of Dr. Edward A. Dauer, M.D. This Court has previously found that Dr. Dauer’s opinion on reasonableness fails to meet the requirements of Daubert. See Pro Imaging, Inc. (a/a/o Jennifer Rojas) v. State Farm Mutual Automobile Insurance Company, Dade County Court Case No.: 12-2963 SP 23 (Order dated February 11, 2016) [24 Fla. L. Weekly Supp. 71c]. As in the Pro Imaging case this Court finds that Dr. Dauer’s affidavit fails to create an issue of fact as to reasonableness as the affidavit and opinions therein are self-serving, conclusory, devoid of sufficient facts or data, based on inadmissable hearsay and lacked reliable principles, methodology, foundation or basis for the assertion that the amount charged was unreasonable. Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999). The Plaintiff has filed a notice of supplemental authority citing a plethora of rulings (19 trial court orders) from trial courts rejecting Dr. Dauer’s testimony and affidavit. Such rulings, while not binding, are persuasive and this Court likewise finds that Dr. Dauer’s affidavit is insufficient to create an issue of fact as to the reasonableness of the subject charges.
Lastly, the Court finds that the mere existence of Medicare and HMO and PPO rates that are lower than actual charges in the community does not create an issue of fact as to the reasonableness of a medical providers charge that exceeds such reimbursement rates. Medicare is not insurance but is instead a social welfare program and is not an insurance or reimbursement plan. Atkins v. Allstate Insurance Company, 382 So.2d 1276 (Fla. 3rd DCA 1980). 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/o 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 & Alberto Galindo Alfonso) v. United Automobile Insurance Company, 23 Fla. L. Weekly Supp. 304a (11th Cir. App. 2015). A party may not defeat a motion for summary judgment by raising purely paper issues where the pleadings and evidentiary matters before the trial court show that defenses are without substance in fact or law. Reflex, N.V. v. UMET Trust, 336 So.2d 473 (Fla. 3rd DCA 1976).
Accordingly, the Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED.
That a final judgment is hereby entered in favor of the Plaintiff, MIAMI DADE COUNTY MRI, CORP., 411 S.W. 27th Avenue, Miami, FL 33135, and the Plaintiff shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, FEI # 65-0415688, the amount of $89.28, representing payment of PIP benefits, together the amount of $16.93, representing interest at the 2012 statutory rate of 8% for 1458 days (04/02/2012 through 03/30/2016), for a total judgment of $106.21, for which let execution issue and which shall bear interest at the statutory rate commencing 03/30/2016 until paid.
IT IS FURTHER ORDERED AND ADJUDGED that the Court finds that the Plaintiff is entitled to an award of reasonable attorney’s fees and costs and shall reserve jurisdiction over this matter for purposes of determining the amount of such fees and costs.
