25 Fla. L. Weekly Supp. 158a
Online Reference: FLWSUPP 2502MEDEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Affidavit by insurer’s expert was sufficient to create factual issue as to necessity of chiropractic treatment for certain CPT codes where expert opined that these treatments were duplicative or redundant, as they achieved the same physiological effect — Trial court erred in entering summary judgment in favor of provider with respect to these specific treatments — Summary judgment in favor of provider affirmed with respect to all other charges
STATE FARM MUTUAL AUTOMOBILE INSURANCE, Appellant, v. COAST CHIROPRACTIC CENTER, a/a/o Linda Medelus, Appellees. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE 15-000197 (AP). L.T. Case No. COCE 12-022317. April 13, 2017. Appeal from the County Court of the Seventeenth Judicial Circuit, Broward County, Robert W. Lee, Judge. Counsel: Daniel M. Schwarz, of Cole Scott & Kissane, P.A., Plantation, for Appellants. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., Miami, for Respondent.
OPINION
(PER CURIAM.) State Farm Mutual Insurance Company appeals the summary final judgment rendered in favor of Appellee, Coast Chiropractic Center, as assignee of Appellant’s insured, Linda Medelus. Having carefully considered the briefs, the record, and the applicable law, this Court dispenses with oral argument and finds that the final summary judgment should be AFFIRMED IN PART and REVERSED IN PART as set forth below:
“The standard of review governing a trial court’s ruling on a motion for summary judgment is de novo.” Harris v. Aberdeen Prop. Owners Ass’n, Inc., 135 So. 3d 365, 367 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D193a] (quoting Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) [26 Fla. L. Weekly S465a]). Entry of summary judgment “is appropriate only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Yaralli v. Am. Reprographics Co., 165 So. 3d 785, 787 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1240a]. On summary judgment, the trial court must draw all inferences in favor of the non-moving party. O’Malley v. Ranger Constr. Indus., 133 So. 3d 1053, 1055 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D130b]. “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Id. “Great caution should be exercised in any summary judgment proceedings not to deny a litigant ample opportunity to demonstrate that he is entitled to the benefit of a trial.” Stephens v. Dichtenmueller, 216 So. 2d 448, 450 (Fla. 1968).
Under Florida’s No-Fault Law, “an insurer is not liable for any medical expense. . . if the service is not necessary.” Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998) [25 Fla. L. Weekly D2730a]. The plaintiff in a cause of action for personal injury protection (“PIP”) benefits must prove the necessity of all treatments rendered to the insured. § 627.736 (4)(b), Fla. Stat. (2009). Thus, the elements of Appellee’s case, including medical necessity are set forth by statute. Derius, 723 So. 2d at 272-74. “Whether a given medical service is ‘necessary’ under section 627.736(1)(a) is a question of fact for the jury. . . decided by fact-finders on a case by case basis. . .” Id. at 274. Appellant could challenge the medical necessity of the treatment rendered by Appellee at any time, including after payment of the claim. § 627.736(4)(b)6., Fla. Stat. A panel of this Court previously held that a claim of duplicative treatment is sufficient to create an issue of material of fact. See United Auto. Ins. Co. v. Dr. Tanya Kahl, P.A. a/a/o Tamayo, 17 Fla. L. Weekly Supp. 1003a (Fla. 17th Cir. Ct. App. 2010) (holding that as a result of certain treatment modalities being unnecessary, Insurer’s affidavit was sufficient to create a genuine issue of material fact in a claim for PIP benefits).
Dr. Bradley Simon’s affidavit creates a genuine issue of material fact that precludes summary judgment. In his affidavit, Dr. Simon, opined that certain chiropractic treatments were not necessary because such treatments were duplicative or redundant as they achieved the same physiological effect. Dr. Simon’s affidavit states at paragraph 8: “only one unit per visit of CPT codes 98940, 97140, G0283, 97010 and 97012 should have been given.” Additionally, Dr. Simon’s affidavit alleges that there was no medical necessity “for [both] CPT code 97035 (ultrasound) and 97010 (hot packs)” because both are “heat modalities and achieve the same physiological effect.” In paragraph 10, Dr. Simon added that “CPT code 97140 when performed with chiropractic manipulation (98940) to the same [bodily] region is considered excessive and redundant as both modalities achieve the same physiological effect.” Finally, Dr. Simon stated that “CPT code 97124 when it was performed with electrical muscle stimulation is excessive and redundant as both achieve the same physiological effect.”
Summary judgment is unavailable if the record raises even the slightest doubt as to the existence of an issue of fact. Appellant should not have been denied the right to trial because Dr. Simon’s affidavit raises a question of fact related to the necessity of the treatment codes listed herein.
Notwithstanding, this Court determines that the Appellee satisfied its summary judgment burden as to relatedness, reasonableness and necessity of all other charges. Moreover, Dr. Simon’s affidavit failed to create issues of fact as to the relatedness, reasonableness and necessity of all other charges. Therefore, the trial court’s order granting summary judgment is affirmed as to all other charges not listed herein.
Accordingly, the Order Granting Plaintiff’s Motion for Final Summary Judgment is hereby AFFIRMED IN PART as to all other charges not alleged to be duplicative and redundant and REVERSED IN PART as to the necessity of the treatment codes listed herein. State Farm’s Motion for Appellate Attorney’s Fees is hereby GRANTED, as to the appellate attorney’s fees related to obtaining a partial reversal of the trial court’s order granting summary judgment on the issue of the necessity of the treatment codes listed herein, conditioned on State Farm prevailing in the trial court and the trial court’s determination that State Farm’s proposal for settlement complies with the requirements of the law. Coast Chiropractic Center’s Motion for Appellate Attorney’s Fees is hereby GRANTED, as to the appellate attorney’s fees incurred in defending the trial court’s order granting summary judgment on the relatedness, reasonableness and necessity of all other charges conditioned upon Coast Chiropractic Center ultimately prevailing in the underlying case. (MURPHY, PERLMAN and LEVENSON, JJ., concur.)
