25 Fla. L. Weekly Supp. 915a
Online Reference: FLWSUPP 2510DPERInsurance — Personal injury protection — Coverage — Medical expenses — Summary judgment is entered in favor of medical provider on issues of relatedness of treatment and medical necessity of certain treatments that are undisputed — Issues of improper CPT coding and defective medical record keeping that were raised in affidavit of insurer’s expert but were not pled as affirmative defenses are deemed waived — Reasonableness of charges — Opposing affidavit filed by insurer does not preclude summary judgment in favor of provider on issue of reasonableness of charges — Affidavit opining that nothing in excess of 80% of 200% of Medicare fee schedules can ever be reasonable is inadmissible “pure opinion” based on nothing but expert’s own experience
WEST HOLLYWOOD PAIN & REHABILITATION, INC., a/a/o Danilo Perez, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 13-012004 COCE 52. December 21, 2017. Giuseppina Miranda, Judge. Counsel: Majid Vossoughi, and David Mannering, Majid Vossoughi, P.A., Miami, for Plaintiff. Gregory Willis, and Sarah Hafeez, Cole, Scott & Kissane P.A., Plantation, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PARTPLAINTIFF’S MOTION FOR SUMMARY FINAL JUDGMENT
THIS CAUSE came before the Court on 10/06/17 on Plaintiff’s Motion for Summary Final Judgment. The issue raised by Plaintiff’s Motion is whether the treatment rendered to Danilo Perez was reasonable in price, related to an accident that occurred on 10/04/08, and medically necessary.
The parties were represented by counsel at the hearing who presented arguments to this Court. Gregory Willis, Esquire and Sarah Hafeez, Esq., appeared on behalf of the Defendant, State Farm Mutual Automobile Insurance Company, and Majid Vossoughi, Esq. and David J. Mannering, Esq. appeared on behalf of the Plaintiff, West Hollywood Pain & Rehabilitation, Inc.
The Court having reviewed Plaintiff’s Motion for Summary Final Judgment with supporting evidence, Defendant’s expert affidavit in opposition, the entire Court file, the relevant legal authorities, and having heard argument from counsel and being otherwise sufficiently advised in the premises, hereby enters this Order GRANTING in part and DENYING in part Plaintiff’s Motion for Summary Final Judgment and makes the following factual findings and conclusions of law.
BACKGROUND AND FACTUAL FINDINGS
Danilo Perez was involved in an automobile accident on 10/04/08 and treated with Plaintiff from 10/07/08 through 12/12/08 in relation to injuries sustained in said accident.
Plaintiff, as assignee of a policy of insurance issued by Defendant, submitted its bills in the amount of $14,535.00 for treatment of Danilo Perez to Defendant for payment of Personal Injury Protection (“PIP”) benefits.
Defendant processed Plaintiff’s claim for payment of PIP benefits and tendered payment to Plaintiff in the amount of $8,875.06.
On 07/08/13, Plaintiff, as the assignee of Danilo Perez, filed suit for PIP benefits alleging breach of contract by Defendant.
Defendant’s statutorily mandated Explanations of Review pursuant to Fla. Stat. 627.736(4)(b) reflect that in processing Plaintiff’s claim the Defendant in fact utilized the fee schedule methodology and/or payment limitation contained in Fla. Stat. 627.736(5)(a)2. as their exclusive basis for reimbursement of Plaintiff’s claim.
On 02/10/16 Plaintiff filed depositions transcripts of Miriam Encarnacion, the senior director of health information management with Mitchell International, taken on November 19, 2012, July 17, 2013, and January 16, 2014.
These transcripts collectively reflect that Mitchell International’s “Decision Point” software was used by Defendant to prepare its Explanations of Review and that it was only programmed to process bills pursuant to the fee schedule methodology set forth in Fla. Stat. 627.736(5)(a)2.
On 02/29/16, Plaintiff filed an affidavit from Jason Morris Levine, D.C. with respect to the issue of related and medical necessity of care and treatment rendered to Danilo Perez. In his affidavit, Dr. Levine testifies that the care and treatment provided by the Plaintiff from 10/07/08 through 12/12/08 was medically necessary and related to the injuries sustained by Danilo Perez in an automobile accident that occurred on 10/04/08.
Dr. Levine’s affidavit details the reported complaints of Mr. Perez following his automobile accident of 10/04/08, his diagnosis, and the treatment program consisting of x-rays, examinations, and various physiotherapies. He opines that the x-rays, examinations, as well as treatment and modalities utilized are generally accepted and medically appropriate for injuries sustained and that they are “designed to treat sprains and strains of the soft tissue musculature by increasing circulation and bringing an increased flow of oxygenated blood to the injured areas, relax traumatized muscles, reduce spasm, and allow for localized reduction of trigger points or knots”.
On 02/05/16, Plaintiff filed an affidavit from Craig Dempsey, its chief compliance officer, records custodian, and corporate representative with respect to the issue of patient billing and charges. In his affidavit, Mr. Dempsey testifies that the charges for treatment rendered by the Plaintiff are reasonable charges within the range of usual and customary charges for similar care in the Broward County geographical area. A copy of the medical bills submitted to Defendant reflecting the treatment rendered to Danilo Perez from 10/07/08 through 12/12/08 are attached to Mr. Dempsey’s affidavit and were also attached to his Declarations of Records Custodian filed with this Court on 02/18/15.
On 04/14/16, Plaintiff filed its Motion for Summary Final Judgment as to reasonableness, relatedness, and medical necessity of its care and treatment relying on affidavit testimony from Dr. Levine and Mr. Dempsey.
On 09/27/17, Defendant served its Amended Affidavit from Michael W. Mathesie, D.C. in opposition to Plaintiff’s Motion for Summary Final Judgment. As more fully discussed below, Dr. Mathesie opines that some, but not all treatment rendered by the Plaintiff was medically necessary. As to reasonableness of Plaintiff’s charges, the sum and substance of Dr. Mathesie’s opinion is that nothing above 200% of Medicare Fee Schedule rate would ever be a reasonable charge for a chiropractor’s services.LEGAL ANALYSISSummary Judgment Standard
Florida Rule of Civil Procedure 1.510(c) provides that “judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law”.
“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law”. Volusia County v. Aberdeen At Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a] (citing Menendez v. Palms West Condominium Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1317a].
The Plaintiff’s burden of proof in establishing its prima facie case to recover PIP benefits requires proof that the plaintiff’s medical services are related to the subject accident, medically necessary and that the bills for said services are reasonable. See Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a].Relatedness of Treatment
The record evidence before this Court is undisputed as to the occurrence of an accident on 10/04/08 and that treatment rendered by Plaintiff was in relation to said accident.
Specifically, affidavit testimony of Jason Morris Levine, D.C. provides that Plaintiff treated Danilo Perez in relation to an accident that occurred on 10/04/08. Likewise, affidavit testimony of Michael W. Mathesie, D.C. does not contain any factual basis to conclude that Plaintiff treated Mr. Perez for anything other than the injuries he sustained in the 10/04/08 automobile accident.
Finally, the medical records reviewed and relied upon by both experts demonstrate that Mr. Perez was in an automobile accident on 10/04/08 and that he sustained injuries in that accident.
Accordingly, Plaintiff’s Motion is GRANTED as to issue of relatedness of treatment rendered.Medical Necessity of Electrical Stimulation(CPT Code G0283)
The record before this Court reflects that G0283 was billed on the following dates of service: 10/07/08, 10/08/08, 10/09/08, 10/10/08, 10/13/08, 10/14/08, 10/15/08, 10/16/08, 10/17/08, 10/20/08, 10/21/08, 10/22/08, 10/23/08, 10/24/08, 10/27/08, 10/28/08, 10/29/08, 10/30/08, 10/31/08, 11/03/08, 11/04/08, 11/05/08, 11/06/08, 11/07/08, 11/10/08, 11/11/08, 11/12/08, 11/13/08, 11/14/08, 11/17/08, 11/18/08, 11/19/08, 11/20/08, 11/21/08, 11/24/08, 11/25/08, 11/26/08, 12/01/08, 12/02/08, 12/03/08, 12/04/08, 12/05/08, 12/08/08, 12/11/08, and 12/12/08.
Dr. Mathesie allows CPT Code G0283 as medically necessary “for up to the first 4 to 6 weeks of treatment” through 11/04/08 (Dr. Mathesie’s affidavit, ¶ 10) except disallowing for dates of service 10/08/08, 10/10/08, 10/14/08, 10/16/081, 10/17/08, 10/21/08, 10/23/08, 10/28/08, 10/30/08, and 11/04/08 due to his “consecutive daily treatment” opinion (Dr. Mathesie’s affidavit, ¶ 17).
Accordingly, the medical necessity of G0283 is undisputed for dates of service 10/07/08, 10/09/08, 10/13/08, 10/15/08, 10/20/08, 10/22/08, 10/24/08, 10/27/08, 10/29/08, 10/31/08, and 11/03/08 and, accordingly, Plaintiff’s motion is GRANTED as to said dates of service.
As to the medical necessity of G0283 for the remaining dates of service; to wit, 10/08/08, 10/10/08, 10/14/08, 10/16/082, 10/17/08, 10/21/08, 10/23/08, 10/28/08, 10/30/08, 11/04/08, 11/05/08, 11/06/08, 11/07/08, 11/10/08, 11/11/08, 11/12/08, 11/13/08, 11/14/08, 11/17/08, 11/18/08, 11/19/08, 11/20/08, 11/21/08, 11/24/08, 11/25/08, 11/26/08, 12/01/08, 12/02/08, 12/03/08, 12/04/08, 12/05/08, 12/08/08, 12/11/08, and 12/12/08, Plaintiff’s motion is DENIED.Medical Necessity of Hot / Cold Packs(CPT Code 97010)
The record before this Court reflects that 97010 was billed on the following dates of service: 10/07/08, 10/08/08, 10/09/08, 10/10/08, 10/13/08, 10/14/08, 10/15/08, 10/16/08, 10/17/08, 10/20/08, 10/21/08, 10/22/08, 10/23/08, 10/24/08, 10/27/08, 10/28/08, 10/29/08, 10/30/08, 10/31/08, 11/03/08, 11/04/08, 11/05/08, 11/06/08, 11/07/08, 11/10/08, 11/11/08, 11/12/08, 11/13/08, 11/14/08, 11/17/08, 11/18/08, 11/19/08, 11/20/08, 11/21/08, 11/24/08, 11/25/08, 11/26/08, 12/01/08, 12/02/08, 12/03/08, 12/04/08, 12/05/08, 12/08/08, 12/11/08, and 12/12/08.
Dr. Mathesie allows CPT Code 97010 as medically necessary “for up to the first 4 to 6 weeks of treatment” through 11/04/08 (Dr. Mathesie’s affidavit, ¶ 10) except disallowing for dates of service 10/08/08, 10/10/08, 10/14/08, 10/16/083, 10/17/08, 10/21/08, 10/23/08, 10/28/08, 10/30/08, and 11/04/08 due to his “consecutive daily treatment” opinion (Dr. Mathesie’s affidavit, ¶ 17).
Accordingly, the medical necessity of 97010 is undisputed for dates of service 10/07/08, 10/09/08, 10/13/08, 10/15/08, 10/20/08, 10/22/08, 10/24/08, 10/27/08, 10/29/08, 10/31/08, and 11/03/08 and, accordingly, Plaintiff’s motion is GRANTED as to said dates of service.
As to the medical necessity of 97010 for the remaining dates of service; to wit, 10/08/08, 10/10/08, 10/14/08, 10/16/084, 10/17/08, 10/21/08, 10/23/08, 10/28/08, 10/30/08, 11/04/08, 11/05/08, 11/06/08, 11/07/08, 11/10/08, 11/11/08, 11/12/08, 11/13/08, 11/14/08, 11/17/08, 11/18/08, 11/19/08, 11/20/08, 11/21/08, 11/24/08, 11/25/08, 11/26/08, 12/01/08, 12/02/08, 12/03/08, 12/04/08, 12/05/08, 12/08/08, 12/11/08, and 12/12/08, Plaintiff’s motion is DENIED.Affidavit Testimony of Dr. Mathesie(¶ ¶ 4, 11, 12, 13, 14, 15, 16, 19, 54, 56, 57, and 59 of Dr. Mathesie’s Affidavit)
In portions of ¶¶ 4, 11, 12, 13, 14, 15, 16, 19, 54, 56, 57 and 59 of his affidavit Dr. Mathesie purports to set forth an opinion as to medical necessity of certain care and treatment factually predicated and based upon combined allegations of (i) deficient medical record keeping and (ii) improper CPT coding pursuant to his interpretation of the AMA CPT Coding guidelines.
As more fully set forth below, this Court rejects the testimony of Dr. Mathesie within ¶¶ 4, 11, 12, 13, 14, 15, 16, 19, 54, 56, 57 and 59 of his affidavit.
Issues pertaining to CPT coding which may serve as grounds for denial of treatment or services are affirmative defenses that ought to be pled as a bar to the payment of a PIP claim. See e.g., Progressive Consumers Insurance Company v. Craig A. Newman, D.C., 15 Fla. L. Weekly Supp. 129a (Fla. 13th Circuit Appellate July 17, 2007) (holding that upcoding is an affirmative defense that ought to be pled and for which a carrier has the burden of persuasion); see also Coastal Wellness Centers, Inc (Sacha Peterkin) v. State Farm; Broward County case # 12-1428 COCE 53 (Judge Lee) (disregarding portions of a Dr. Mathesie affidavit “referring to coding issues, which have not been pled as a defense”). In the present case the Defendant has not raised any affirmative defenses pertaining to CPT coding issues and, accordingly, any such issues are deemed waived and not an issue in this case. Fla. R. Civ. Pro. 1.140(h)(1).
Defendant cannot utilize the inadmissible testimony of Dr. Mathesie as a conduit to inject otherwise unpled affirmative defenses in this case. To allow such testimony would implicate not only due process rights of the Plaintiff, but also runs afoul of well-established precedent. See Couchman v. Goodbody & Co., 231 So.2d 842 (Fla. 4th DCA 1970) (reversing summary judgment based on an unpled defense and holding that on motion for summary judgment issues to be considered are those made by the pleadings); Strahan Manufacturing Co. v. Pike, 194 So.2d 277 (Fla. 2nd DCA 1967); H.L. Mills v. Dade County, 206 So.2d 227 (Fla. 3rd DCA 1968). It logically follows that a party cannot present evidence at trial regarding an unpled affirmative defense. See e.g., Meigs v. C.F. Lear, 191 So.2d 286 (Fla. 1st DCA 1966) (dismissing appeal and affirming a denial of motion for summary judgment holding that summary judgment is not to be used as a substitute for parties’ pleadings and where defenses of estoppel and statute of limitation were not raised in the pleadings such defenses did not constitute issues in case in which parties could submit evidence either at trial or in summary judgment proceedings).
As to Dr. Mathesie’s allegations of deficient medical record keeping, and assuming same to be a defense to a PIP claim, this Court notes that any alleged deficiencies have not been raised as an affirmative defense, are not part of the pleadings, and therefore are not an issue in this case.
Finally, portions of Dr. Mathesie’s Affidavit (¶¶ 15 and 59) based on speculation and surmise are also insufficient to create a factual issue as to medical necessity of treatment. See e.g., Morgan v. Continental Casualty Company, 382 So.2d 351 (Fla. 3rd DCA 1980)(affidavits based on speculation, surmise, and conjecture are inadmissible at trial and legally insufficient to create a disputed issue of fact in opposition to a motion for summary judgment); Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla. 1961); see also, M.A. Hajianpour, M.D., P.A., v. Khosrow Maleki, P.A., 932 So.2d 459 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1524c](“when the expert’s opinion is based on speculation and conjecture, not supported by the facts, or not arrived at by recognized methodology, the testimony will be stricken.”).Medical Necessity of Ultrasound(CPT Code 97035)
The record before this Court reflects that 97035 was billed on the following dates of service: 10/07/08, 10/08/08, 10/10/08, 10/13/08, 10/14/08, 10/15/08, 10/16/08, 10/17/08, 10/20/08, 10/21/08, 10/24/08, 10/27/08, 10/28/08, 10/30/08, 11/03/08, 11/04/08, 11/05/08, 11/06/08, 11/07/08, 11/10/08, 11/11/08, 11/12/08, 11/13/08, 11/14/08, 11/17/08, 11/18/08, 11/19/08, 11/20/08, 11/21/08, 11/24/08, 11/26/08, 12/01/08, 12/03/08, 12/04/08, 12/05/08, 12/08/08, 12/11/08, and 12/12/08.
As previously noted, ¶¶ 14, 15, 16, and 59 of Affidavit of Dr. Mathesie pertaining to unpled CPT coding defenses and/or allegations of deficient medical record keeping contain inadmissible summary judgment testimony and do not create a factual issue as to medical necessity of treatment billed under CPT Code 97035.
As to remainder of Dr. Mathesie’s affidavit, same reflects that Dr. Mathesie in fact allows CPT Code 97035 as medically necessary “for up to the first 4 to 6 weeks of treatment” through 11/04/08 (Dr. Mathesie’s affidavit, ¶ 10) except disallowing for dates of service 10/08/08, 10/10/08, 10/14/08, 10/16/085, 10/17/08, 10/21/08, 10/28/08, 10/30/08, and 11/04/08 due to his “consecutive daily treatment” opinion (Dr. Mathesie’s affidavit, ¶ 17).
Based on Dr. Mathesie’s opinions expressed in ¶ 10 noted above, the medical necessity of CPT Code 97035 is undisputed for 10/07/08, 10/13/08, 10/15/08, 10/20/08, 10/24/08, 10/27/08, and 11/03/08 and, accordingly, Plaintiff’s motion is GRANTED as to said dates of service.
As to the medical necessity of 97035 for the remaining dates of service; to wit, 10/08/08, 10/10/08, 10/14/08, 10/16/086, 10/17/08, 10/21/08, 10/28/08, 10/30/08, and 11/04/08, 11/05/08, 11/06/08, 11/07/08, 11/10/08, 11/11/08, 11/12/08, 11/13/08, 11/14/08, 11/17/08, 11/18/08, 11/19/08, 11/20/08, 11/21/08, 11/24/08, 11/26/08, 12/01/08, 12/03/08, 12/04/08, 12/05/08, 12/08/08, 12/11/08, and 12/12/08 Plaintiff’s motion is DENIED.Medical Necessity of Therapeutic Exercises(CPT Code 97110)
The record before this Court reflects that 97110 was billed on the following dates of service: 10/22/08, 10/24/08, 10/27/08, 10/28/08, 10/29/08, 10/30/08, 10/31/08, 11/04/08, 11/05/08, 11/06/08, 11/07/08, 11/10/08, 11/11/08, 11/12/08, 11/13/08, 11/14/08, 11/17/08, 11/18/08, 11/19/08, 11/20/08, 11/21/08, 11/24/08, 11/25/08, 11/26/08, 12/01/08, 12/02/08, 12/03/08, 12/04/08, 12/05/08, 12/08/08, 12/11/08.
As previously noted, ¶¶ 11, 14, 15, 16, and 59 of Affidavit of Dr. Mathesie pertaining to unpled CPT coding defenses and/or allegations of deficient medical record keeping contain inadmissible summary judgment testimony and do not create a factual issue as to medical necessity of treatment billed under CPT Code 97110.
As to remainder of Dr. Mathesie’s affidavit, same reflects that Dr. Mathesie does not contest the medical necessity of CPT Code 97110 other than disallowing for dates of service 10/28/08, 10/30/08, 11/04/08, 11/05/08, 11/06/08, 11/07/08, 11/11/08, 11/13/08, 11/18/08, 11/20/08, 11/25/08, 12/02/08, and 12/04/08 due to his “consecutive daily treatment” opinion (Dr. Mathesie’s affidavit, ¶¶ 11, 17).
Accordingly, the medical necessity of 97110 is undisputed for dates of service 10/22/08, 10/24/08, 10/27/08, 10/29/08, 10/31/08, 11/10/08, 11/12/08, 11/14/08, 11/17/08, 11/19/08, 11/21/08, 11/24/08, 11/26/08, 12/01/08, 12/03/08, 12/05/08, 12/08/08, and 12/11/08 and, accordingly, Plaintiff’s motion is GRANTED as to said dates of service.
As to the medical necessity of 97110 for the remaining dates of service; to wit, 10/28/08, 10/30/08, 11/04/08, 11/05/08, 11/06/08, 11/07/08, 11/11/08, 11/13/08, 11/18/08, 11/20/08, 11/25/08, 12/02/08, and 12/04/08 Plaintiff’s motion is DENIED.Medical Necessity of Manual Therapy(CPT Code 97140)
The record before this Court reflects that 97140 was billed on the following dates of service: 10/07/08, 10/08/08, 10/09/08, 10/10/08, 10/13/08, 10/14/08, 10/16/08, 10/17/08, 10/20/08, 10/21/08, 10/22/08, 10/23/08, 10/24/08, 10/27/08, 10/28/08, 10/29/08, 10/30/08, 10/31/08, 11/03/08, 11/04/08, 11/05/08, 11/06/08, 11/07/08, 11/10/08, 11/11/08, 11/12/08, 11/13/08, 11/14/08, 11/17/08, 11/18/08, 11/19/08, 11/20/08, 11/21/08, 11/25/08, 11/26/08, 12/01/08, 12/02/08, 12/03/08, 12/04/08, 12/05/08, 12/08/08, 12/11/08, 12/12/08.
As previously noted, ¶¶ 13, 14, 15, 16, and 59 of Affidavit of Dr. Mathesie pertaining to unpled CPT coding defenses and/or allegations of deficient medical record keeping contain inadmissible summary judgment testimony and do not create a factual issue as to medical necessity of treatment billed under CPT Code 97140.
As to remainder of Dr. Mathesie’s affidavit, same reflects that Dr. Mathesie does not contest the medical necessity of CPT Code 97140 other than disallowing for dates of service 10/08/08, 10/10/08, 10/14/08, 10/17/08, 10/21/08, 10/23/08, 10/28/08, 10/30/08, 11/04/08, 11/06/08, 11/11/08, 11/13/08, 11/18/08, 11/20/08, 11/25/08, 11/26/08, 12/02/08, 12/04/08, and 12/12/08 due to his “consecutive daily treatment” opinion (Dr. Mathesie’s affidavit, ¶¶ 13, 17).
Accordingly, the medical necessity of 97140 is undisputed for dates of service 10/07/08, 10/09/08, 10/13/08, 10/16/08, 10/20/08, 10/22/08, 10/24/08, 10/27/08, 10/29/08, 10/31/08, 11/03/08, 11/05/08, 11/07/08, 11/10/08, 11/12/08, 11/14/08, 11/17/08, 11/19/08, 11/21/08, 12/01/08, 12/03/08, 12/05/08, 12/08/08, and 12/11/08 and, accordingly, Plaintiff’s motion is GRANTED as to said dates of service.
As to the medical necessity of 97530 for the remaining dates of service; to wit, 10/08/08, 10/10/08, 10/14/08, 10/17/08, 10/21/08, 10/23/08, 10/28/08, 10/30/08, 11/04/08, 11/06/08, 11/11/08, 11/13/08, 11/18/08, 11/20/08, 11/25/08, 11/26/08, 12/02/08, 12/04/08, and 12/12/08 Plaintiff’s motion is DENIED.Medical Necessity of Mechanical Traction(CPT Code 97012)
The record before this Court reflects that 97012 was billed on the following dates of service: 10/09/08, 10/23/08, and 10/29/08.
As previously noted, ¶¶ 59 of Affidavit of Dr. Mathesie pertaining to unpled CPT coding defenses and/or allegations of deficient medical record keeping contain inadmissible summary judgment testimony and do not create a factual issue as to medical necessity of treatment billed under CPT Code 97012.
As to remainder of Dr. Mathesie’s affidavit, same reflects that Dr. Mathesie does not contest the medical necessity of CPT Code 97012 other than disallowing for dates of service 10/23/08 due to his “consecutive daily treatment” opinion (Dr. Mathesie’s affidavit, ¶ 17).
Accordingly, the medical necessity of 97012 is undisputed for dates of service 10/09/08, and 10/29/08 and, accordingly, Plaintiff’s motion is GRANTED as to said dates of service.
As to the medical necessity of 97012 for the remaining date of service; to wit, 10/23/08 Plaintiff’s motion is DENIED.Medical Necessity of Final Evaluation(CPT Code 99213)
The record before this Court reflects that 99213 was billed on the following dates of service: 12/12/08.
As previously noted, ¶¶ 19 and 56 of Affidavit of Dr. Mathesie pertaining to unpled CPT coding defenses and/or allegations of deficient medical record keeping contain inadmissible summary judgment testimony and do not create a factual issue as to medical necessity of treatment billed under CPT Code 99213.
As to remainder of Dr. Mathesie’s affidavit, same reflects that Dr. Mathesie does not contest the medical necessity of CPT Code 99213.
Accordingly, the medical necessity of 999213 is undisputed for dates of service 12/12/08 and, accordingly, Plaintiff’s motion is GRANTED as to said dates of service.Medical Necessity of Follow Up Evaluation(CPT Code 99212)
The record before this Court reflects that on 10/22/08, and 10/29/08 Plaintiff performed Follow Up Evaluations and that same was billed under CPT Code 99212. The medical necessity of this service is undisputed for date of service 10/22/08 and disputed for date of service 10/29/08.
Specifically, nothing within Dr. Mathesie’s Affidavit suggests that the Follow Up Evaluation of 10/22/08, was medically unnecessary or unwarranted for purposes of treating Danilo Perez; however, as to the Follow Up Evaluation performed on 10/29/08 Dr. Mathesie’s Affidavit states in ¶18 that there was no rationale for performing another follow up evaluation on 10/29/08.
Accordingly, Plaintiff’s Motion is GRANTED as to issue of medical necessity of a Follow Up Evaluation rendered pursuant to CPT Code 99212 for date of service 10/22/08.
Accordingly, Plaintiff’s Motion is DENIED as to issue of medical necessity of a Follow Up Evaluation rendered pursuant to CPT Code 99212 for date of service 10/29/08.Medical Necessity of Consultation(CPT Code 99242)
The record before this Court reflects that on 10/23/08 Plaintiff performed a Consultation and that same was billed under CPT Code 99242. The medical necessity of this service is undisputed.
As previously noted, ¶ 56 of Affidavit of Dr. Mathesie pertaining to unpled CPT coding defenses and/or allegations of deficient medical record keeping contain inadmissible summary judgment testimony and do not create a factual issue as to medical necessity of treatment billed under CPT Code 99242.
Specifically, nothing within Dr. Mathesie’s Affidavit suggests that a Consultation was medically unnecessary or unwarranted for purposes of treating Danilo Perez.
Accordingly, Plaintiff’s Motion is GRANTED as to issue of medical necessity of Consultation rendered pursuant to CPT Code 99242 for date of service 10/23/08.Medical Necessity of Initial Examination(CPT Code 99202)
The record before this Court reflects that on 10/07/08 Plaintiff performed an Initial Examination and that same was billed under CPT Code 99202. The medical necessity of this service is undisputed.
Specifically, nothing within Dr. Mathesie’s Affidavit suggests that an Initial Examination was medically unnecessary or unwarranted for purposes of diagnosing or treating Danilo Perez.
Accordingly, Plaintiff’s Motion is GRANTED as to issue of medical necessity of Initial Examination rendered pursuant to CPT Code 99202 for date of service 10/07/08.Medical Necessity of Office Visits (99211) andNeuromuscular Reeducation (97112)
As to medical necessity of 99211, Plaintiff’s motion is DENIED for all dates of service7 due to Dr. Mathesie’s opinion as expressed in ¶ 9 of his affidavit.
As to medical necessity of 97112, Plaintiff’s motion is DENIED for all dates of service8 due to Dr. Mathesie’s opinion as expressed in ¶ 12 of his affidavit.Reasonableness of Plaintiff’s Charges
As it pertains to a medical provider’s burden in establishing reasonableness of its charges, the 17th Judicial Circuit, sitting in its appellate capacity, has held that a medical provider establishes a prima facie case that its bills are reasonable by offering testimony through a qualified witness that its prices are based on years of personal experience, consideration of fee and coding reference books and the usual and customary charges of other medical providers in the community for the same procedure codes. United Auto Ins. Co. v. Hallandale Open MRI, LLC. a/a/o Antonette Williams, 21 Fla. L. Weekly Supp. 399d (Fla.17th Cir. App. December 11, 2013); Cert. Den., 145 So.3d 997 (Fla. 4th DCA 2014).Affidavit of Craig Dempsey
As to reasonableness of Plaintiff’s charges, Plaintiff provided affidavit testimony from Craig Dempsey, its chief compliance officer, records custodian, and corporate representative.
Mr. Dempsey testifies that he has personal knowledge regarding usual and customary charges and payments accepted by the Plaintiff and that the amount billed by the Plaintiff represents its usual and customary charges for services rendered. He testifies that Plaintiff accepted as its usual and customary payment from no-fault insurers eighty percent of the amounts billed on policies that did not contain medical payments coverage and one hundred percent of the amounts billed on policies containing medical payments coverage.
Mr. Dempsey further testifies that at all relevant times Plaintiff was not a Medicare or Medicaid provider and did not treat or accept patients under either program, was not a Worker’s Compensation provider, was not a participant in any HMO or PPO managed care plans, and rendered treatment primarily to patients that have been involved in automobile accidents and primarily billed PIP insurance carriers under Florida’s No-Fault act.
Mr. Dempsey testifies that the charges for treatment rendered by the Plaintiff are reasonable charges within the range of usual and customary charges for similar care in the Broward County geographical area. A copy of the medical bills submitted to Defendant reflecting the treatment rendered to Danilo Perez from 10/07/08 through 12/12/08 are attached to Mr. Dempsey’s affidavit and are also attached to his Declarations of Records Custodian filed with this Court on 02/18/15.
Mr. Dempsey’s affidavit reflects that he has been in the medical billing field since 1979, operated two billing companies, was responsible for preparing the medical bills in this case, and is familiar with the range of usual and customary charges for chiropractic treatment and what other medical providers charge in Broward County. Mr. Dempsey’s affidavit outlines his methodology which involves comparing Plaintiff’s charges to the range of charges of other medical providers in the community. His affidavit outlines the data utilized in formulating his opinion, a copy of which was produced to Defendant along with his affidavit.
In the present case, Plaintiff has met its prima facie burden to establish that its charges are reasonable.9Admissibility of Expert TestimonyFla. Stat. 90.702
The admissibility of expert testimony is governed by Florida Statute 90.702 (2013) which, in July 2013 was amended to adopt the Daubert standard, established by the United States Supreme Court in Daubert v. Merrel Dow, 509 U.S. 579 (1993).
The amended statute, in pertinent part, provides that:
[i]f 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.
Under the amended statute, the proponent of the opinion must demonstrate to the Court that the expert’s opinion is “based upon sufficient facts or data.” Pan Am Diagnostics, Inc. v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp. 937a (Broward County Court 2013); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The trial judge is assigned the role of “gatekeeper” to ensure that an expert’s testimony is relevant and reliable. Daubert v. Merrel Dow, 509 U.S. 579, 590 (1993).Affidavit of Michael Mathesie, D.C.
The sum and substance of Dr. Mathesie’s affidavit testimony is that nothing in excess of Defendant’s reimbursement equal to 80% of 200% of Medicare Part B fee schedule can ever constitute a reasonable charge for services rendered by the Plaintiff. As set forth below, Dr. Mathesie’s opinion cherry picks data and methodology to advance a litigation position maintained by Defendant contrary to its own policy of insurance and binding precedent.
Dr. Mathesie formulates his ultimate opinion premised on:
(i) what his practice accepts as reimbursement for chiropractic services,
(ii) PIP insurers’ trend post 2008 to systematically reimburse chiropractic services at 200% of Medicare Part B,
(iii) reasonableness of State Farm’s reimbursement, and
(iiii) negotiated and approved payment schedules of Health insurers including HMOs and PPOs (80% – 140% of Medicare) and reimbursement of commercial insurers (80% – 140% of Medicare).
This Court has previously rejected Dr. Mathesie’s opinion on issue of reasonableness of charges as insufficient and failing to meet the test of admissibility under Fla. Stat. 90.702. See Tri-County Accident Clinic, LLC (Dana Jackson) v. State Farm Mutual Automobile Insurance Company, Case No., 13-8806 COCE 52 (Fla. 17th Circuit, Broward County, Judge Miranda, July 13, 2016).10
Consistent with its prior ruling, this Court holds that Dr. Mathesie’s testimony on issue of charges is insufficient to meet the test of admissibility under Fla. Stat. 90.702 and, accordingly, fails to create a material issue of fact as to reasonableness of Plaintiff’s charges.
Dr. Mathesie’s opinion is “pure opinion” testimony which does not appear to be based upon anything other than his own experience which is specifically precluded under Fla. Stat. 90.702. Perez v. Bellsouth Telecommunications, Inc., 138 So.3d 492 (Fla. 3rd DCA 2014) (“expert testimony that might otherwise qualify as ‘pure opinion’ testimony is expressly prohibited”).
Since Dr. Mathesie accepts an amount equal to or less than 80% of 200% of Medicare Part B as reimbursement for chiropractic services rendered by his office he formulates a “pure opinion” that reimbursement rate of PIP insurers equal to 80% of 200% of Medicare Fee is viewed as the maximum charge that can be deemed reasonable in the community. He then makes a quantum leap and concludes that Plaintiff’s charges are “unreasonable” since “Plaintiff’s charges exceed the usual and customary reimbursement levels in the community.” (Dr. Mathesie affidavit, ¶ 38). Dr. Mathesie’s methodology is flawed since the relevant inquiry is not Defendant’s reimbursements but rather the reasonableness of Plaintiff’s charges. See New Smyrna Imaging, LLC. v. State Farm Mutual Auto Ins. Co., 20 Fla. L. Weekly Supp. 671a (Volusia Cty. Ct. 2013 (Sanders, J.)). After all, the question posed to a jury in a PIP case concerns prices and specifically whether the provider’s charges are reasonable.
Testimony or an argument that fee schedule payments standing alone without consideration of reasonableness of amounts charged does not create a factual issue as to reasonableness of a medical provider’s charges. See Health Diagnostics of Ft. Lauderdale, LLC (John Winn) v. USAA Cas. Ins. Co., 20 Fla. L. Weekly Supp. 292b (Broward County Court 2012)(Judge DeLuca); Hallandale Open MRI, LLC (Tramaine Morgan) v. State Farm, 20 Fla. L. Weekly Supp. 683a (Broward County Court 2013)(Judge Schiff); Hallandale Open MRI, LLC (Mustafa Nassar) v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp. 587a (Broward County Court 2012)(Judge De Luca); New Smyrna Imaging, LLC (Francis Horgan) v. State Farm, 20 Fla. L. Weekly Supp 671a (Broward County Court 2012)(Judge Sanders); Hallandale Open MRI, LLC (Carnes Vilatte) v. United Automobile Insurance Company, 22 Fla. L. Weekly Supp. 851a (Fla. 17th Cir., Broward County Court, Judge Miranda, January 13, 2015)(disallowing testimony of a defense expert noting that his knowledge as to what Medicare and Health Insurers allow is insufficient to qualify his opinion as an expert on issue of charges).
Clearly, the statute provides that it is the “charges and payments accepted by the provider involved in the dispute” that is relevant to a reasonableness of charges inquiry and not Dr. Mathesie’s charges and payments he accepts. Instead of considering the “charges and payments accepted” by Plaintiff, Dr. Mathesie considers his own usual and customary charges and what his office accepts in consideration for like services provided by his office in formulating his purported pure opinion that Plaintiff’s charges are “unreasonable”. Dr. Mathesie’s methodology, as applied to the facts of this case is flawed in that he completely disregards the following in formulating his purported pure opinion in this case:
(i) that the Plaintiff, unlike his office, did not treat or accept patients under either Medicare or Medicaid programs;
(ii) that the Plaintiff, unlike his office, was not a Worker’s Compensation provider;
(iii) that the Plaintiff, unlike his office, was not a participant in any HMO or PPO managed care plans;
(iv) that the Plaintiff, unlike his office, accepts as its usual and customary payment from no-fault insurers eighty percent of the amounts billed on policies that do not contain medical payments coverage and one hundred percent of the amounts billed on policies that do not contain medical payments coverage.
(v) that the amounts billed by the Plaintiff represent Plaintiff’s usual and customary charges for patient services.
Based on the foregoing, this Court holds that Dr. Mathesie’s opinion pertaining to reasonableness of charges constitutes inadmissible affidavit testimony and fails to create a disputed issue of material fact on the issue of reasonableness of Plaintiff’s charges.
Accordingly, Plaintiff’s Motion is GRANTED as to issue of reasonableness of its charges.
ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Final Judgment is GRANTED in part and DENIED in part as more fully set forth above. The Plaintiff is entitled to final judgment in its favor and against Defendant in an amount equal to eighty percent of its billed charges for all codes found to be related and medically necessary less prior payments made by Defendant for said codes subject to the remaining benefits under Defendant’s policy of insurance. Plaintiff shall submit a proposed Final Judgment in its favor and against Defendant consistent with this Order directly to chambers.
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1¶ 17 of Dr. Mathesie’s affidavit appears to contain an inadvertent omission for date of service 10/16/08. Although not specifically delineated by Dr. Mathesie, CPT code G0283 billed on 10/16/08 appears to be a date of service he intended to disallow by virtue of his “consecutive daily treatment” opinion as set forth in ¶ 17 and, accordingly, has been accounted for in this Order.
2¶ 17 of Dr. Mathesie’s affidavit appears to contain an inadvertent omission for date of service 10/16/08. Although not specifically delineated by Dr. Mathesie, CPT code G0283 billed on 10/16/08 appears to be a date of service he intended to disallow by virtue of his “consecutive daily treatment” opinion as set forth in ¶ 17 and, accordingly, has been accounted for in this Order.
3¶ 17 of Dr. Mathesie’s affidavit appears to contain an inadvertent omission for date of service 10/16/08. Although not specifically delineated by Dr. Mathesie, CPT code 97010 billed on 10/16/08 appears to be a date of service he intended to disallow by virtue of his “consecutive daily treatment” opinion as set forth in ¶ 17 and, accordingly, has been accounted for in this Order.
4¶ 17 of Dr. Mathesie’s affidavit appears to contain an inadvertent omission for date of service 10/16/08. Although not specifically delineated by Dr. Mathesie, CPT code 97010 billed on 10/16/08 appears to be a date of service he intended to disallow by virtue of his “consecutive daily treatment” opinion as set forth in ¶ 17 and, accordingly, has been accounted for in this Order.
5¶ 17 of Dr. Mathesie’s affidavit appears to contain an inadvertent omission for date of service 10/16/08. Although not specifically delineated by Dr. Mathesie, CPT code 97035 billed on 10/16/08 appears to be a date of service he intended to disallow by virtue of his “consecutive daily treatment” opinion as set forth in ¶ 17 and, accordingly, has been accounted for in this Order.
6¶ 17 of Dr. Mathesie’s affidavit appears to contain an inadvertent omission for date of service 10/16/08. Although not specifically delineated by Dr. Mathesie, CPT code 97035 billed on 10/16/08 appears to be a date of service he intended to disallow by virtue of his “consecutive daily treatment” opinion as set forth in ¶ 17 and, accordingly, has been accounted for in this Order.
7The record before this Court reflects that 99211 was billed on the following dates of service:
10/08/08, 10/10/08, 10/13/08, 10/14/08, 10/15/08, 10/16/08, 10/17/08, 10/20/08, 10/21/08, 10/23/08, 10/24/08, 10/27/08, 10/28/08, 10/30/08, 10/31/08, 11/03/08, 11/04/08, 11/05/08, 11/06/08, 11/07/08, 11/10/08, 11/11/08, 11/12/08, 11/13/08, 11/14/08, 11/17/08, 11/18/08, 11/19/08, 11/20/08, 11/21/08, 11/24/08, 11/25/08, 11/26/08, 12/01/08, 12/02/08, 12/03/08, 12/04/08, 12/05/08, 12/08/08, 12/11/08.
8The record before this Court reflects that 97112 was billed on the following dates of service:
10/07/08, 10/08/08, 10/09/08, 10/10/08, 10/13/08, 10/14/08, 10/16/08, 10/17/08, 10/20/08, 10/21/08, 10/22/08, 10/23/08, 10/24/08, 10/27/08, 10/28/08, 10/29/08, 10/30/08, 10/31/08, 11/03/08, 1/04/08, 11/05/08, 11/06/08, 11/07/08, 11/10/08, 11/11/08, 11/12/08, 11/13/08, 11/14/08, 11/17/08, 11/18/08, 11/19/08, 11/20/08, 11/21/08, 11/24/08, 11/25/08, 11/26/08, 12/01/08, 12/02/08, 12/03/08, 12/04/08, 12/05/08, 12/08/08, 12/11/08, and 12/12/08.
9This Court further notes that the affidavit testimony of Mr. Dempsey as to issue of reasonableness of charges has been upheld on appeal by the 17th Judicial Circuit, sitting in its appellate capacity. See State Farm Mutual Auto. Ins. Co. v. Margate Pain and Rehabilitation, Inc., a/a/o Meike Reichert, Case No. CACE 14-009527 (AP), LT Case No. COCE13-012309; State Farm Mutual Auto. Ins. Co. v. Margate Pain and Rehabilitation, Inc., a/a/o Pierre Charlesca, Case No. CACE 14-009523 (AP), LT Case No. COCE13-012317; State Farm Mutual Auto. Ins. Co. v. Margate Pain and Rehabilitation, Inc., a/a/o Rhonda Metz Kanugalawatta, Case No. CACE 14-009526 (AP), LT Case No. COCE13-012327; State Farm Mutual Auto. Ins. Co. v. Margate Pain and Rehabilitation, Inc., a/a/o Sandra Vincente, Case No. CACE 14-009515 (AP), LT Case No. COCE13-012337; State Farm Mutual Auto. Ins. Co. v. Margate Pain and Rehabilitation, Inc., a/a/o Timothy Tripp, Case No. CACE 14-010365 (AP), LT Case No. COCE13-012352; State Farm Mutual Auto. Ins. Co. v. Margate Pain and Rehabilitation, Inc., a/a/o Shadae McNutt, Case No. CACE 14-010367 (AP), LT Case No. COCE13-012343 [25 Fla. L. Weekly Supp. 149a].
10Other Courts have likewise rejected affidavits from Dr. Mathesie, D.C. due to flawed methodology and failure to meet the test of admissibility under Fla. Stat. 90.702. Northside Chiropractic, Inc. (Vera Goodman) v. State Farm Mutual Automobile Insurance Company, 23 Fla. L. Weekly Supp. 869a (Fla. 17th Cir., Broward County Court, Judge Kanner, January 25, 2016) (Dr. Mathesie’s methodology “is not based on sufficient facts or data and not the product of reliable principles and methodologies” excluding any consideration of any amounts above 200% of Medicare); Randy Rosenberg, D.C., P.A. (Louis P. Longobardi) v. State Fam Mutual Automobile Insurance Company, 23 Fla. L. Weekly Supp. 488a (Fla. 17th Cir., Broward County Court, Judge Levy, July 9, 2015) (“this court is of the opinion that the methodology by which Dr. Mathesie reached his conclusions is not “based upon sufficient facts or data” and not “the products of reliable principles and methods” as required by F.S. 90.702”); All Care Health and Wellness Center (Sharon Hooks) v. State Farm Mutual Automobile Insurance Company, 23 Fla. L. Weekly Supp. 596a (Fla. 11th Cir., Miami-Dade County Court, Judge Lehr) (rejecting Mathesie’s opinion on charges premised on his reliance of irrelevant fee schedules, conclusory, not based on sufficient facts or data and not the product of reliable principles and methods).
