25 Fla. L. Weekly Supp. 559a
Online Reference: FLWSUPP 2506TULIInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Medical provider made prima facie showing of reasonableness of MRI charge by presenting affidavit testifying that it regularly received payment of its charge as reasonable and incorporating data from industry source placing its charge between 50th and 75th percentile of charges for service at issue in community — 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, offered opinion rooted in circular logic and conclusory statements, and included only Medicare reimbursement rates in his analysis
PAN AM DIAGNOSTIC SERVICES, INC. d/b/a Wide Open MRI (a/a/o Marco Pardo Tulio), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-9609 SP 23 (4). May 12, 2017. Alexander S. Bokor, Judge. Counsel: Yigal Kahana, for Plaintiff. James Keleman, for Defendant.
REVERSED. 27 Fla. L. Weekly Supp. 348a; FLWSUPP 2704TULI
ORDER GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on May 2, 2017, on Plaintiff’s motion for final summary judgment. The Court, having reviewed the evidence and relevant legal authorities, heard argument, and been otherwise advised in the premises, finds as follows:
In this case, Plaintiff sued Defendant claiming unpaid Personal Injury Protection (PIP) benefits for an MRI exam (CPT Code 72141) performed on January 3, 2013 in Broward County, FL. The Plaintiff billed $2150.00 for that MRI exam, and the Defendant paid $939.87, which amount was calculated at 80% of Medicare Part B’s participating physicians fee schedule. Plaintiff filed suit for the difference between $1720.00 (80% of $2150.00) and $939.87. The Court has already granted summary judgment in Plaintiff’s favor as to the relatedness and necessity of the service at issue, and the only matter remaining to be decided is the reasonableness of the Plaintiff’s charge for that service.
The Evidence: To prove that its charge of $2150.00 was reasonable, Plaintiff submitted the affidavit of Roberta Kahana, the Plaintiff’s owner and director, who stated as a fact witness that Plaintiff regularly received payment of its charge as reasonable in 2012 and 2013 from payors who had not elected to pay pursuant to the Medicare fee schedule methodology. Ms. Kahana’s affidavit also attached and incorporated data from an industry reference source, the Ingenix Fee Analyzer, which placed Plaintiff’s charge between the 50th and 75th percentile of charges for the services at issue in Fort Lauderdale, FL in 2013. The record further reflects that the Defendant admitted in response to Plaintiff’s second request for admissions that, for an MRI exam (CPT Code 72141) performed in South Florida in 2012, the 25th percentile of all charges was $1876.03, the 50th percentile of all charges was $2483.90, and the 80th percentile of charges was $2931.95. The Defendant also1 admitted the accuracy of a list showing that Plaintiff’s charge was in the middle of the range of charges charged by Broward County MRI providers who billed the Defendant for CPT Code 72141 in June 2012. Plaintiff further filed the transcript of Dr. Edward Dauer’s deposition, in which he stated that hospital charges for the service at issue were “many times greater than” Plaintiff’s charge, and “commonly” $10,000.00.2
To oppose Plaintiff’s motion, the Defendant filed the affidavit of said Dr. Edward Dauer, as the Defendant’s expert witness. Dr. Dauer, is a diagnostic radiologist who owns a diagnostic facility in Broward County. He stated that Plaintiff’s charge was not reasonable because: “I believe amounts higher than 200% of Medicare are unreasonable.”3 Because Plaintiff’s charge exceeded 200% of the Medicare allowable amount in Broward County, Dr. Dauer concluded that Plaintiff’s charge was unreasonable.4
Findings of Fact and Law: The Court finds as a matter of fact that the Defendant did not unambiguously elect the Medicare fee schedule methodology of payment in its policy. As a matter of law, the issue to be determined is whether the Plaintiff’s charge was reasonable.
The Court finds that the Kahana affidavit shows a substantial connection with Broward County and is admissible evidence that the Plaintiff’s charge was reasonable, for the services at issue where and when they were rendered. With it and the Defendant’s admissions, Plaintiff has borne its prima facie burden of showing that its charge was reasonable.
The Court further finds that the Defendant has not submitted evidence competent to raise a genuine fact-dispute about the reasonableness of the Plaintiff’s charge. The Defendant submitted Dr. Dauer as an expert witness, and “the subject of an expert’s testimony must be ‘scientific knowledge.’ ” Perez v. Bell South Telecommunications, Inc., 138 So.3d 492, 498 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b], quoting Daubert at 590. “In order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method.” Id. In other words, expert testimony must be genuinely scientific rather than “unscientific speculation offered by a genuine scientist.” Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir. 2014) [25 Fla. L. Weekly Fed. C416a].
In this case, the Court finds that Dr. Dauer’s affidavit is not based on sufficient facts or data, and does not identify any reliable principles and methods upon which it is based. His affidavit is general in nature and based entirely on the Medicare fee schedule. His opinion is rooted in circular logic, and conclusory statements like: “any charge or payment in excess of approximately 200% of Medicare is unreasonable,” and, “in the medical community, Medicare is considered to be an objective benchmark or gold standard for determining a reasonable charge” and, “100% of the Medicare fee schedule has been adopted as the base level of reimbursement by most insurance companies.”5 But other than referring to his own practice, Dr. Dauer offers no background, facts, or data to support his opinion. Rather, his opinion is rooted solely on the Medicare fee schedule, which may not be the sole basis for determining reasonableness under FS 627.736(5)(a)(1) (2012). He did not attempt to set apart the PIP industry from the entire “medical community” when rendering his opinion. Rather than sampling the prices that providers in the community charged and were reimbursed for, Dr. Dauer included only Medicare reimbursement rates in his analysis, and ignored all other charges and reimbursements in the community that exceeded 200% of Medicare. That is not a scientific or statistically sound analysis of whether the Plaintiff’s charge was reasonable in the community.
In his affidavit, at paragraph 22, Dr. Dauer stated: “It is also my understanding that certain Courts and Plaintiff’s attorneys believe that considering Medicare and what other commercial/private insurers reimburse in a PIP case are irrelevant to determine whether a provider’s charge is reasonable. This is misplaced. . .” Assuming arguendo that Medicare fee schedules could be considered as indicia of reasonableness, the failure to examine any other evidence renders Dr. Dauer’s opinion fatally flawed in determining reasonableness under FS 627.736(5)(a)(1). See Hialeah Med. Assoc, Inc. (a/a/o Ana Lezcano) v. United Auto. Ins. Co., Case No. 12-229 AP (Fla. 11th Jud. Cir. March 7, 2014), rhng. den., (Holding that Medicare fee schedules may not be used by insurers that did not elect them in their policies to prove the reasonableness of the medical provider’s charges.); Atkins v. Allstate Ins. Co., 382 So.2d 1276 (Fla. 1980)(“Medicare is a social welfare program and not an insurance or reimbursement plan within the everyday and ordinary meaning of these terms.”). The court makes no finding here as to whether and under what circumstances medicare fee schedules could be used as part of a determination of reasonableness. The Court simply finds that considering medicare fee schedules alone and allowing that to create an issue of fact would create an absurd result whereby even without electing to pay under fee schedules, a provider could eschew any payment above the fee schedule by arguing that the fee schedules and the fee schedules alone provide indicia of reasonableness. The Court therefore finds Dr. Dauer’s affidavit, stating the billed amount is unreasonable, to be conclusory, devoid of sufficient facts or data, and lacking reliable principles, methodology, foundation or the basis for his opinion that the amount charged was unreasonable. The methodology is unsupported, and lacks relevant factors, and thus, he would be considered unqualified to give ultimate opinions on the reasonableness of the MRI charges. Since there is a lack of sufficient facts or data and a lack of reliable principles and methods, there can be no reliable application of them. See Giaimo v. Florida Autosport, 39 Fla. L. Weekly D2484a (Fla. 1st DCA 2014). His opinion based on his “extensive experience” is nothing more than pure opinion. See Perez v. Bellsouth, 138 So. 3d 492 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D865b].6
Dr. Dauer repeatedly stated in his deposition that charges are irrelevant, as at page 19:
“Q. . . .do you have an opinion what the reasonable charges should be for the service provided by Plaintiff in this case?
A. My opinion is it doesn’t matter what somebody charges because it’s irrelevant.”
But in this case, the issue to be determined is whether the Plaintiff’s charge was reasonable. Clearly, what Plaintiff charged, and whether that amount is reasonable in the community, is relevant. The testimony which Dr. Dauer offered is essentially a legal, not a scientific, opinion.
For the foregoing reasons, the Court holds that Plaintiff is entitled to summary judgment on the issue of the reasonableness of its charge in this case.
Therefore it is
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED. Final Judgment be and the same is hereby entered in favor of the Plaintiff, PAN AM DIAGNOSTIC SERVICES, INC., as assignee of Marco Pardo Tulio, against the Defendant, State Farm Mutual Automobile Insurance Company, whose address is One State Farm Plaza, Bloomington, IL 61710, in the total amount of $780.13 ($2,150 x 80% = $1720, less prior payment of $030.87 = $780.13), plus applicable prejudgment and post judgment interest, for which let execution issue forthwith.
The Court finds Plaintiff to be the prevailing party herein, and entitled to attorney’s fees and costs pursuant to FS 627.428, and expressly reserves jurisdiction to determine the amount of such attorney’s fees and costs.
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1In another case; Plaintiff filed certified copies of that admission in this case.
2Pp.20, 27; Transcript of deposition of Edward Dauer, MD; filed by Plaintiff on May 17, 2016.
3Par. 16, Affidavit of Edward Dauer, MD; infra
4Pp.17-18, Transcript of deposition of Edward Dauer, MD;: “I believe 200 percent of the Medicare allowable in Broward County. That’s the maximum number that I would consider reasonable, and that was $1,174.84.”
5Par. 17, Affidavit of Edward Dauer, MD
6Although the Court reviews affidavits on a case-by-case basis, this Court is mindful of the fact that numerous County Courts in South Florida have also rejected Dr. Dauer’s affidavit to defeat Summary Judgment and Summary Disposition on price. See Hallandale Open a/a/o Vilatte v. United, 22 Fla. L. Weekly Supp. 851a (Fla. Broward County Court 2015, Judge Miranda); Millennium Radiology a/a/o Rosendo Fernandez v.United Auto, 13-016575 COCE 51 (Fla. Broward County Court 2015, Judge Dishowitz) [23 Fla. L. Weekly Supp. 368b]; Chiropractic Radiology a/a/o Jackson v. State Farm, Case number 13-1106 SP 24 (Fla. Dade Cty Court 2015, Judge Cannava); Milllennium Radiology v. United Auto, 13-01357 CONO 73 and 13-03346 CONO 73 (Fla. Broward County 2015, Judge DeLuca); Millennium Radiology a/a/o Diaz v. United, 12-006125 COCE 54 (Fla. Broward County Court 2015, Judge Zaccor) [22 Fla. L. Weekly Supp. 1100a]; Roberto Rivera Morales /a/o Delva v. State Farm, 12-02735 SP 26 (04) (Fla. Dade County Court 2015, Judge King)(see the numerous cases cited therein); A1A Management Services d/b/a Roberto Morales v. State Farm, 13-15069 SP25 (01)(Fla. Dade County 2015, Judge Stuzin)(a Daubert hearing was conducted and the judge rejected Dr. Dauer’s Opinions).
