25 Fla. L. Weekly Supp. 91b
Online Reference: FLWSUPP 2501PADRInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Provider made prima facie showing of reasonableness of charges by presenting medical bill for the service at issue and testimony that the patient received the treatment in question — Affidavit submitted by insurer in opposition to provider’s motion for summary judgment did not meet Daubert standard where expert relied primarily on personal experience without explaining how experience led to opinion, why experience was sufficient basis for opinion, and how experience was reliably applied to facts
MILLENNIUM RADIOLOGY, LLC (a/a/o Danilo Padron) Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-00875-SP-23. January 17, 2017. Diana Vizcaino, Judge. Counsel: Vincent J. Rutigliano, Rosenberg & Rosenberg, Hollywood. for Plaintiff. Orlando Ortiz, for Defendant.
REVERSED. FLWSUPP 2706PADR
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on Plaintiff’s Motion for Partial Summary Judgment as to reasonableness. The Court having considered the motion, heard argument of all counsel, reviewed applicable legal authority, and being otherwise fully advised, finds as follows:
FACTUAL AND PROCEDURAL BACKGROUND
This is an action for personal injury protection (PIP) benefits under an automobile insurance policy issued by the Defendant, for medical services rendered to Danilo Padron, arising out of an automobile accident on August 30, 2010. Plaintiff submitted its bill to Defendant for services rendered to Mr. Padron for a total amount of $2,170.00. Defendant reimbursed the Plaintiff in the amount of $449.55. The amount paid by the Defendant represented the amount payable under the permissive payment limitations of Section 627.736(5)(a), Florida Statutes. Plaintiff has filed suit seeking payment in the amount of $1,286.45 which amount represents 80% of the amount billed less the amounts paid by the Defendant. The issue before the Court is whether the subject charges were reasonable.
SUMMARY JUDGMENT STANDARD
In a motion for summary judgment the movant must demonstrate that no genuine issue exists as to any material fact, and the Court must draw every possible inference in favor of the party opposing summary judgment. Bowman v. Barker, 172 So.3d 1013 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D2091b]; citing Moore v. Morris, 475 So.2d 666 (Fla. 1985). A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Id. The burden is on the movant to demonstrate conclusively that the non-movant cannot prevail. It is an exacting test, for if the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper. Bellamy v. Ameri-Pride Inc., 157 So.3d 1053 (Fla. 2nd DCA 2014) [39 Fla. L. Weekly D1206a]. In order to grant a summary judgment motion, the trial court must find by competent evidence that no genuine issue of material fact is in dispute and, thus, the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510.
ANALYSIS
The Plaintiff relies on two affidavits filed by its corporate representative/owner Roberta Kahana, to establish reasonableness of Plaintiff’s charge. In her affidavit she attests 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; and provides an explanation of the affiant’s job functions as custodian of records and person responsible for billing which included review of the payments received from PIP insurers to ensure proper payment has been made.
A Plaintiff’s prima facie showing of the reasonableness of its charges can be established by 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). “[A] medical bill constitutes the provider’s opinion of a reasonable charge for the services.” See 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. Sea World of Florida Inc. v. Ace American Ins. Co., Inc., 28 So.3d 158 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So.2d 1122 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]. The Court finds that the Plaintiff has met its prima facie burden as to the reasonableness of the charges.
In opposition to the Plaintiff’s Motion for Partial Summary Judgment the Defendant relies on the affidavit of Dr. Edward Dauer, M.D. Defendant submits the affidavit of Dr. Dauer as expert opinion on the issue of reasonableness. As such, the Court must consider whether the Affidavit of Dr. Dauer complies with the requirements set forth in Florida Statute §90.702, 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).
Under the Daubert standard, when an expert is relying primarily on experience, the expert must explain how that experience leads to his or her opinion, why the experience is a sufficient basis for his or her opinion, and how that experience is reliably applied to the facts. United Automobile Insurance Company v. Professional Medical Group, Inc. a/a/o Mercedes Valientes, [24 Fla. L. Weekly Supp. 20a] (11th Cir. Ct.); State Farm. Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr. Inc., 2009 WL 6357793 (M.D. Fla. 2009). Dr. Dauer fails to articulate how his experience leads to his opinion of the unreasonableness of the Plaintiff’s charge, why his experience is a sufficient basis for his opinion of the Plaintiff’s charge, and how that experience is reliably applied to the facts. Dr. Dauer’s affidavit is general in nature and provides testimony based on his own experience and what he is reimbursed for identical services at his facilities. Additionally, he refers to discussions he has had with peers regarding reimbursement rates, without providing any detail as to what the reimbursement rates are, or how he comes to the conclusion that the Plaintiff’s charge is unreasonable.
Dr. Dauer’s Affidavit fails to meet the requirements of Daubert and is therefore, inadmissible. The Court finds the affidavit is general in nature, the opinion is not based on sufficient facts or data, and it fails to identify reliable principles and methodology.
CONCLUSION
Plaintiff has established that no genuine issues of material fact exist as to reasonableness. Based on the foregoing, it is hereby:
ORDERED and ADJUDGED:
Plaintiff’s Motion for Partial Summary Judgment as to reasonableness is GRANTED.
