25 Fla. L. Weekly Supp. 551a

Online Reference: FLWSUPP 2506DUGAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Medical provider made prima facie showing of reasonableness of charges by presenting affidavit testifying that charges were in line with prevailing charges of other providers in community and within range of usual and customary charges and reimbursement rates 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 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 Yvon Dugazon) Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-9625 SP 23 (2). June 28, 2017. Caryn Schwarts, Judge. Counsel: Yigal Kahana, for Plaintiff. Brian R. Goldstein, for Defendant.

REVERSED. FLWSUPP 2708DUGA

ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT(Note: Plaintiff’s Motion was argued prior to the publication ofthe Florida Supreme Court’s position regarding the Daubertstandard, therefore, this Court is applying the Daubert standardsince there was no reason for the attorneys to argue theapplication of the Frye standard to theirwitnesses for reasonableness)

THIS CAUSE came before the Court on January 31, 2017 (with proposed Orders by each attorney due April 26, 2017) on Plaintiff’s motion for final summary judgment. The Court, having reviewed the evidence and relevant legal authorities, heard argument, and being otherwise advised in the premises, finds as follows:

Summary

This is a case for Personal Injury Protection benefits for two MRI exams, CPT Code 72141 and 72148, performed in Orange County, FL, on Nov. 20, 2012. Plaintiff charged $2150.00 for each exam, for a total of $4300.00. The Defendant issued a payment of $1657.84 in benefits towards Plaintiff’s bill, and after making a statutory demand, Plaintiff filed suit for the difference ($3440.00 – 165.84 =), $1742.16.

This Court already granted Plaintiff summary judgment as to the relatedness and necessity of the services at issue. The only remaining matter to be determined is the reasonableness of the Plaintiff’s charge for said services.

The Evidence

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 from a wide variety of insurers who had not elected the Medicare fee schedule methodology. Ms. Kahana’s affidavit also attached 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 Orlando, FL in 2012. Plaintiff further submitted evidence showing that the Defendant, on another claim from 2012, allowed and paid this Plaintiff’s full charge for the exact same services.

To oppose Plaintiff’s motion, Defendant filed the affidavit of said Dr. Edward Dauer, as the Defendant’s expert witness. Dr. Dauer, a diagnostic radiologist who owns a diagnostic facility in Broward County, stated: “I believe amounts higher than 200% of Medicare are unreasonable.”¹ Because Plaintiff’s charge exceeded 200% of the Medicare allowable amount in Broward County, Dr. Dauer concluded that Plaintiff’s charge was unreasonable.

Findings of Fact and Law: The Court finds as a matter of fact that the Defendant did not elect the Medicare fee schedule methodology of payment in its policy. There is no dispute about that. As a matter of law, the issue to be determined is whether the Plaintiff’s charge was reasonable.

Pursuant to Fla. Stat. §627.736(5)(a)1, “In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.”

The Court finds that the Kahana affidavit shows a substantial connection with Orlando, FL, and is admissible evidence that the Plaintiff’s charge was reasonable, for the services at issue where and when they were rendered. Mrs. Kahana testified that Plaintiff’s charges were in line with prevailing charges charged for the services at issue by other community providers, and were within the range of usual and customary charges and reimbursement rates in the community. She testified that she has “knowledge of the usual and customary charge in the community, and of reimbursement rates my facility received from insurers. . . .”² She attached industry reference material that supports her position. Thus, Plaintiff has borne its prima facie burden of showing that its charge was reasonable.

The Court finds that Dr. Dauer’s affidavit is deficient, does not comply with any scientific standard, and does not raise any issue of fact about the reasonableness of the charge. That affidavit incorporated no data about MRI charges in Orlando, FL, showed no basis for reaching any conclusion about the reasonableness of charges, and no connection to 2012 or the Orlando, Florida medical community and marketplace. He has not shown that he is an expert, or has any knowledge, firsthand or not, regarding what are reasonable MRI charges in Orange County in 2012.

As Dr. Dauer is providing his expert opinion on the issue of reasonableness, his testimony must withstand the scrutiny of Section 90.702, Florida Statutes (2013), 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).

Whether Dr. Dauer can give expert testimony regarding the reasonableness of the charges turns on whether sub-sections (1), (2), and (3) of F.S. 90.702 are satisfied. More specifically, “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, Dr. Dauer’s 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].

The first three sentences of Dr. Dauer’s affidavit read:

1. My name is Edward Dauer, M.D. I am over the age of 18 and sui juris. This affidavit is based on my personal knowledge, skill, experience, training and education.

2. My testimony is the product of reliable principles and methods; and I have applied the principles and methods reliably to the facts of this case.

3. My testimony is based upon sufficient facts and data.

Dr. Dauer’s affidavit attempts to address the prongs of the Daubert criteria, however this Court finds that the attempt fails, as his opinion is not based on sufficient facts or data, nor does it identify the reliable principles and methods it is based on. Dr. Dauer’s affidavit is general in nature and provides evidence based on his own experience, to wit: what he charges for identical services at his facilities. His opinion is rooted in the conclusory statements, “amounts higher than 200% of Medicare are unreasonable,” and, “in the medical community Medicare is considered to be an objective benchmark or “standard” for determining a reasonable charge” and, “100% or less of the Medicare fee schedule has been adopted as the base level of reimbursement by most insurance companies.”³ Other than referring to his own insurance contracts, Dr. Dauer offers no background, facts, or data to establish these conclusions. Rather than sampling the prices that providers in the community charged and accepted, 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 way to analyze data, or determine whether the Plaintiff’s charge was reasonable in the community.

In his affidavit, at paragraph 23, 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. . .” Yet, Florida courts, like this Court, have consistently held that the Medicare Part B fee schedule is irrelevant to a determination of the reasonableness of a charge 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) [21 Fla. L. Weekly Supp. 487b],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 finds Dr. Dauer’s affidavit 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. His opinion is being rejected because the methodology is unsupported, he is not relying on relevant factors, and thus, he cannot be considered qualified to give ultimate opinions on the reasonableness of the MRI charges. The fact that Dr. Dauer decided to use the lowest payors in the community is simply insufficient to create a triable issue. He fails to explain based on relevant evidence why the charged amount is unreasonable. His statement of what Medicare allows and what some in network health insurers allow and reimburse for MRIs does not qualify him to state a billed charge is unreasonable, as he employed no methodology or analysis. His testimony is simply not competent to raise a fact issue as to what is a reasonable charge according to Fla. Stat. §90.702. It is not based upon sufficient facts or data, and not the product of reliable principles. 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 and therefore, unmoving. See Perez v. Bellsouth, 138 So. 3d 492 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D865b].⁴

The testimony which Dr. Dauer offered is essentially a legal, not a scientific, opinion. But just as he has not been qualified as an expert on the law, neither does his testimony here qualify as scientific under Section 90.702 Florida Statutes (2013). On the contrary, he offers “pure opinion” which must be rejected. Perez at 497; Giaimo v. Florida Autosport, Inc., 154 So.3d 385 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D2484a].

Although the evidence shows that Plaintiff’s charge fell well within the range of what other Orlando, Florida MRI providers charged in 2012, and although the Plaintiff’s charge did not encroach into the range that Dr. Dauer stated that hospitals customarily charged, Dr. Dauer nonetheless concludes that Plaintiff’s charge was unreasonable. Based on a preponderance of credible evidence presented in this case, as well as on Florida law, the Court rejects his conclusion and 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 Yvon Dugazon, 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.

__________________

¹Par. 18, Affidavit of Edward Dauer, MD

²Par. 19, Affidavit of Roberta Kahana, Filed by Plaintiff on May 15, 2015

³Par. 30, Affidavit of Edward Dauer, MD

⁴Although 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).