25 Fla. L. Weekly Supp. 130a

Online Reference: FLWSUPP 2501MORAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Medical provider met burden of proving that charges for MRI scans were reasonable by introducing bill, assignment of benefits, and affidavit of its owner/corporate representative — Owner’s affidavit is not insufficient for failing to address every reasonableness factor mentioned in PIP statute — Opposing affidavit of non-expert that presents inadmissible lay opinion testimony and relies on inadmissible unauthenticated documents and settlement documents is insufficient to create genuine issue of material fact and avoid summary judgment — Even if affiant were offered as expert, she is not competent to be expert witness where her opinions are not based on sufficient facts or data — Fact that Medicare and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charges

WIDE OPEN MRI, INC., (St. Anor Moranci), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-26076 COCE 51. March 1, 2017. Kathleen McCarthy, Judge. Counsel: Caroline Martelli, Marks & Fleischer, P.A., Fort Lauderdale, for Plaintiff. Sean Sweeney, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT

THIS CAUSE having come on to be considered before the Court on Plaintiff’s Motion for Final Summary Judgment, and the Court having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:

Plaintiff, WIDE OPEN MRI, INC., provided lumbar and cervical MRIs to St. Anor Moanci on April 26, 2010. Plaintiff billed $2,150.00 for each MRI provided to Defendant’s insured pursuant to an assignment of benefits. In response, Defendant paid $1,773.02 ($860.28 for the cervical MRI and $912.74 for the lumbar MRI) which it admits is equivalent to 200% of the Medicare Part B fee schedule. On May 26, 2016, Defendant filed its Stipulation as to Relatedness and Necessity. Therefore, the only issue for the Court’s determination is whether Plaintiff’s charge is reasonable as set forth below.

In support of its Motion for Final Summary Judgment, Plaintiff relies upon the affidavit of Roberta Kahana, owner and corporate representative of WIDE OPEN MRI. In her affidavit, Ms. Kahana attests Plaintiff’s charges were reasonable, and usual and customary based on her personal knowledge at the time the charges were established, that she set charges by speaking with other diagnostic service facilities and her charge was consistent with others were charging for similar services. She further attests that since she set her charges at $2,150.00 for each MRI, she has kept her charges the same and has received reimbursement of full charge of as “reasonable charge” from No-Fault insurers who did not apply the 200% of Medicare schedule of limited reimbursement methodology and from No-Fault Insurers who did not properly adopt the 200% Medicare limited reimbursement in their policies.

The Court finds Plaintiff met its burden to set forth its prima facie showing that the amount of $2,150.00 is reasonable. United Automobile Insurance Company v. Hallandale Open MRI, LLC (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) [39 Fla. L. Weekly D1883c]; Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So. 2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c].

In Pan Am Diagnostic Svcs., Inc. a/a/o Fritz Telusma v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. 17th Jud. Cir., October 1, 2013) Judge Lee opined:

A plaintiff’s prima facie showing of the reasonableness of its charges can be established by merely 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, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; Iowa Mutual Nat’l Ins. Co. v. Worthy, 447 So.2d 998, 1000 n.5 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409, 409-10 (Fla. 1st DCA 1979); State Farm Mutual Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (11th Cir. Ct. 2004) (appellate capacity). As noted by the Fourth DCA, “[A] medical bill constitutes the provider’s opinion of a reasonable charge for the services.” A.J., 677 So.2d at 937. In the alternative, a plaintiff may also present lay testimony from a fact witness with firsthand knowledge as to why the charge for the service was set at the rate at which it was billed. Multicare, 12 Fla. L. Weekly Supp. at 33a. 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, 160 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So.2d 1122, 1123 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]; A.J., 677 So.2d at 937-38; East West Karate Assn, Inc. v. Riquelme, 638 So.2d 605, 605 (Fla. 4th DCA 1994); Multicare, 12 Fla. L. Weekly Supp. at 33a; Kompothrecas v. Progressive Consumers Ins. Co., 8 Fla. L. Weekly Supp. 505a, 506 (Sarasota Cty. 2001).

It has been widely recognized in several courts that under A.J. v. State, a plaintiff’s prima facie showing of the reasonableness of its charges can be established by merely presenting the medical bill for the service at issue, along with testimony that the patient received the treatment in question. Pan Am Diagnostic Services, Inc. (Fritz Telusma) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Judge Lee, Broward Cty. Ct. 2013); Millennium Radiology, LLC (Roberto Diaz) v. United Automobile Ins. Co., 22 Fla. L. Weekly Supp. 1100a (Judge Zaccor, Broward Cty. Ct. 2015); Faye Imaging v. State Farm Mut. Auto Ins. Co., 23 Fla. L. Weekly Supp. 182a (Judge DeLuca, Broward Cty. Ct. 2015); Hallandale Open MRI, LLC., (Carnes Vilatte) v. United Automobile Insurance Company, 22 Fla. L. Weekly Supp. 851a (Judge Miranda, Broward Cty. Ct. 2015); Pan Am Diagnostics Services Inc., d/b/a Wide Open MRI, (Svetlana Pimanova) v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 650a (Judge DeLuca, Broward Cty. Ct. 2014); Coastal Radiology, LLC (Daniel Fornes) v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 396a (Judge Lee, Broward Cty. Ct. 2014); Palms MRI Diagnostic Imaging Centers, Inc. (Frank Sirker) vs. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 393b (Judge Schiff, Broward Cty. Ct. 2014); Hallandale Open MRI, LLC, (Jean Wilkens Saint-Ange) vs. United Automobile Insurance Company, 22 Fla. L. Weekly Supp. 149a (Judge Fry, Broward Cty. Ct. 2014); Hallandale Open MRI, LLC (Mickael Cohen) vs. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 140a (Judge Dishowitz, Broward Cty. Ct. 2014); Florida Wellness & Rehabilitation Center, Inc., (a/a/o Jose Ferrer), vs. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 837a (Judge Pedraza, Miami-Dade Cty. Ct. 2014); A1A Management Services, LLC d/b/a Roberto Rivera-Morales, M.D, (a/a/o Farano Muselaire) vs. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 835c (Judge Gonzalez-Meyer, Miami-Dade Cty. Ct. 2015); Roberto Rivera-Morales, M.D., (a/a/o Humberto Clavijo), vs. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 833b (Judge Gonzalez-Paulson, Miami- Dade Cty. Ct. 2014). The purpose of PIP is to reimburse a plaintiff for medical expenses received in an automobile accident. The un-reimbursed portions of expenses not covered by PIP are presented as evidence in a lawsuit against the third party. There cannot be a greater evidentiary burden to prove one is entitled to be reimbursed from one own’s insurer than the tortfeasor. There are simply not two separate evidentiary standards.

Plaintiff not only meets the standard by properly introducing the bill and assignment of benefits as evidence, but goes beyond the minimum requirements to make its prima facie showing of reasonableness with the affidavit of Roberta Kahana as the owner and corporate representative of WIDE OPEN MRI. An owner may testify as to damages and valuation of his property. Reliance Ins. Co. v. Pro-Tech Conditioning & Heating, 866 So.2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c]. This is a well-established rule based on the owner’s presumed familiarity with the characteristics of the property, knowledge or acquaintance with its uses and purposes, and experience. Id. at 702. This rule has been extended to permit owners and corporate representatives to testify as to business valuation. Mercury Marine Division of Brunswick Corp. v. Boat Town USA, Inc., 444 So.2d 88 (Fla. 4th DCA 1984). See also In re Biddiscombe International, LLC v. Gayheart, 392 B.R. 909 (U.S. Bankruptcy Court, M.D. Tampa 2008) [21 Fla. L. Weekly Fed. B501a] (Citing the traditional practice of allowing an owner of property to testify as to its value. Most courts allow an officer or owner of business to testify as to its value or projected profits without the need to qualify as an expert because such lay opinion testimony is based on a type of personal knowledge — the particularized knowledge that the witness has by virtue of his or her position in the business. Owner of property may testify as to its value without demonstrating any additional qualifications to give opinion evidence).

As an owner, Ms. Kahana has personal knowledge of the valuation of the services at issue and establishes that the charges are reasonable in that they were set in accordance with what Ms. Kahana learned other facilities were charging for similar services, that Ms. Kahana references the Ingenix National Fee Analyzer as a guide, and that Ms. Kahana receives regular and consistent reimbursements at 80-100% of her charges. Ms. Kahana is qualified to testify as to the value by virtue of her status as owner and corporate representative of WIDE OPEN MRI where she sets forth she is the person responsible for setting the charges and is personally familiar with the company’s billing practices, office procedures, collection practices, reimbursement trends for Plaintiff’s services, and charges in the community. Therefore, Plaintiff established through competent evidence that the charge for the service at issue was reasonable and is entitled to summary judgment.

Defendant argues that these cases are inapplicable because they do not involve PIP, and since PIP permits consideration of a number of factors, then a plaintiff is required to prove more. The Court rejects this argument. United Automobile Insurance Company v. Hallandale Open MRI, LLC (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) [39 Fla. L. Weekly D1883c].

Defendant contends that merely because they paid an amount different from what the Plaintiff charged a jury question is created. As detailed above, Courts have long held in a PIP context that reasonableness can be resolved by summary judgment.

In response to Plaintiff’s Motion for Final Summary Judgment, Defendant relies on the affidavit of litigation adjuster Lisbeth Velazquez, who is offered as a “fact witness.” Plaintiff argues the Defendant failed to establish a disputed issue of material fact through Lisbeth Velazquez’s affidavit. This Court agrees with the Plaintiff. Millennium Radiology LLC (Carmen Ruiz) v. United Automobile Insurance Company, 22 Fla. L. Weekly Supp. 136b (J. Deluca, Broward Cty. Ct., July 14, 2014).

Once a party moving for summary judgment presents competent evidence to support its motion for summary judgment, that party is entitled to summary judgment unless the non-moving party can come forward with competent evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla. 1979). Under Rule 1.510(e), a court may consider evidence at a summary judgment hearing only if it would be “admissible in evidence.”

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

Here, Defendant has failed to present competent, admissible evidence to rebut Plaintiff’s prima facie showing that their charge is reasonable. To the extent Defendant relies upon Lisbeth Velazquez as its corporate designee and fact witness, the affidavit fails to present admissible evidence which would create a genuine issue of material fact. The opinions offered are inadmissible lay opinion testimony. Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived, and usually involves matters such as distance, time, size, weight, form and identity. Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1991) citing Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So.2d 140 (Fla. 4th DCA 1985); Hallandale Open MRI, LLC., (a/a/o Guerda Pierre) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 709a (Fla. Broward County, Cnty. Ct. 2014) (Peter B. Skolnik, J.); Plantation Open MRI, LLC (a/a/o Licia Scott) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 702a (Fla. Broward County, Cnty. Ct. March 18, 2014) (Peter B. Skolnik, J.); Millennium Radiology, LLC d/b/a Millennium Open MRI (a/a/o Melvin Galdamez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Fla. Broward County, Cty. Ct. 2013) (Robert W. Lee, J.); Millennium Radiology (a/a/o Dennyssee Dieguez) v. United Auto. Ins. Co., Case No. 11-24154 COCE (53)(Fla. Broward County, Cty. Ct. December 19, 2013) (Robert W. Lee, J.); High Definition Mobile MRI, Inc. (a/a/o Jean Dieujuste) v. State Farm Mutual Auto. Ins. Co., Case No. 12-14694 COCE (53) (Fla. Broward County, Cty. Ct. September 23, 2013) [22 Fla. L. Weekly Supp. 477a] (Robert W. Lee, J.); See also United Automobile Insurance Company v. Miami Neurology Rehabilitation Specialists a/a/o Maria Broche, 19 Fla. L. Weekly Supp. 799a (11th Cir. App. June 19, 2012)(Testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness, and not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702).

Essentially, Defendant’s corporate designee’s opinion is that 200% of Medicare is the amount United Automobile found to be reasonable based on her experience in claims handling experience and her review of the documents attached to her affidavit. Notably, the extent of Ms. Velazquez’s experience at United Automobile Insurance Company has been only to reimburse claims at United Automobile Insurance Company at 200% of Medicare Part B. Thus, as a matter of law, the opinions offered by Lisbeth Velazquez are not rationally based on her own perception and are not the type of lay opinions which can be relied upon by the Defendant.

Further, Ms. Velazquez attaches unauthenticated documents to her affidavit in reliance on her opinion. A lay witness cannot rely on hearsay in forming an opinion. James Crystal Licenses, LLC v. Infinity Radio Inc., 43 So.3d 68 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1111d]. Ms. Velazquez cannot rely on any of the documents attached to her affidavit as they do not meet any hearsay exceptions. In support of her opinion, Ms. Velazquez relies on her review of the following documents: (1) HCFA/CMS forms from other providers billing less than Plaintiff; (2) Medicare and Worker’s Compensation fee schedules; (3) settlement documents between United Automobile Insurance Company and Plaintiff as well as other providers; (4) explanations of review from State Farm Insurance Company to other providers; (5) an HMO payment log to a different provider; and (6) copies of complaints filed by Plaintiff and other providers against different insurance companies.

In paragraph 5 of her affidavit, Ms. Velazquez states “each of the attached documents are certified and sworn to by me.” Ms. Velazquez, however cannot assert that any of these documents are in any way business records of United Automobile Insurance Company. Authentication of evidence is a condition precedent to its admissibility. Zoda v. Hedden, 596 So.2d 1225 (Fla. 2d DCA 1992). Furthermore, since she is not the custodian of records created by other entities, she is unable to authenticate HCFA/CMS forms from other providers billing less than Plaintiff, the Medicare and Worker’s Compensation fee schedules, explanations of review from State Farm Insurance Company to other providers, the HMO payment log to a different provider, or copies of complaints filed by Plaintiff and other providers against different insurance companies. Id. Just because these documents appear in United Auto’s business records does not automatically bring those documents within the business records exception to the hearsay rule. Landmark American Ins. Co. v. Pin-Pon Corp, 155 So.3d 432 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D191a]. Since Ms. Velazquez cannot properly authenticate these documents, Defendant is excluded from relying upon these documents to create a question of fact. Belber v. Lipson, 905 F.2d 549 (1st Cir. 1990). Further, any attempted reliance on pleadings cannot create a disputed issue of material fact as pleadings are inadmissible to prove or disprove a fact in issue. Fallon v. City Furniture, Inc., 959 So.2d 306 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1219e].

In her affidavit, Ms. Velazquez also attaches settlement documents between United Automobile Insurance Company and medical providers (including Plaintiff) in an attempt to demonstrate that Plaintiff and other providers accept payments in amounts less than they billed. Plaintiff’s objection to Ms. Velazquez’s reference to these documents is well taken and the Court does not consider these documents as summary judgment evidence. Fla. Stat. 90.408 provides:

Compromise and offers to compromise. — Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.

(Emphasis added). Settlement discussions are precluded from admission into evidence for the purposes of proving liability or value of the claim based on notions of public policy and fundamental fairness which facilitates settlements. Cornell University v. Hewlett-Packard, Case No. 01-CV-1974 (N.D.N.Y., 2008). Settlements in a context where litigation is threatened, or at least probable, is properly excludable in cases involving valuation because the avoidance of risk and litigation will always be a potential motive for a settlement. Id. citing Rude v. Westcott, 130 U.S. 152, 164 (1888). In a PIP context, providers may base settlement agreements on varieties of factors and risks such as non-payment and time and expense associated with litigation which are not reliable guides in determining the reasonableness of Plaintiff’s charge. Abbot Laboratories v. Sandoz, Inc., 743 F.Supp. 2d 762 (N.D. Ill., 2010). The usual course of settlements does not provide an accurate reflection of what a party is willing to do in an arm’s length transaction. Insight Technology, Inc. v. SureFire LLC, Case No. 04-CV-74-JD (D.N.H. October 8, 2009). Not only is the probative value outweighed by the danger of unfair prejudice, but the Court’s consideration of these settlements would invite “mini-trials” on the facts and reasons for each settlement. Id. Therefore, based on the Rule and well-established case law, this Court does not consider the settlement agreements as proper summary judgment evidence which creates a question of material fact.

It is well settled that in order to take advantage of the more limited reimbursement provided by Fla. Stat. §627.736(5)(a)(2)(f), the insurer must specify that method to the exclusion of any others. Geico General Insurance Co. v. Virtual Imaging Services, Inc. (“Virtual II”), 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] aff’d 141 So. 3d 147, 2013 WL 3332385 (Fla. 2013) [38 Fla. L. Weekly S517a]; DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. Defendant is not permitted to use the “200% Medicare” methodology to limit reimbursement unless it can demonstrate that amount is the maximum reasonable amount under some alternative means. Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55, 57 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a] (“Furthermore, as section 627.736(5)(a)(2) provides that insurers “may” consult the Medicare fee schedule, it follows that, under the statute, insurers who choose not to do so have recourse to some alternative means for determining a reimbursement amount.”).

Ms. Velazquez was not offered as an expert by the Defendant, and if she was offered as an expert, the Court finds she is not competent to be an expert witness according to Fla. Stat. 90.702(1) as her opinions are not based on sufficient facts or data. In her affidavit, Ms. Velazquez completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider as well as consideration of any amounts above 200% of Medicare in reaching her ultimate conclusion that an amount equal to 200% of Medicare is a reasonable charge. In essence, Ms. Velazquez’s ultimate opinion excludes any data which could cause an increase in the outcome.

To the extent Defendant attempts to rely upon Plaintiff’s interrogatory answers regarding reimbursements from Medicare, HMO and PPO policies, the Court does not find these are relevant factors in determining whether a charge is reasonable pursuant to Fla. Stat. 627.736(5)(a)(1) which create a question of fact. Hialeah Medical Assoc. a/a/o Lexcano v. United Auto, 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. App. Court 2014)(“Medicare fee schedules are not relevant in PIP cases, and should not be used.”); State Farm v. Florida Wellness a/a/o Alonso, 23 Fla. L. Weekly Supp. 88a (Fla. 17th Cir. App. Ct. 2015)(Affirming trial court judge’s refusal to consider affidavit opining a charge was unreasonable based on Medicare and Medicaid). The fact that Medicare and health insurance allow less than the amount billed by the Plaintiff in this case, by itself, is not sufficient to create a triable issue that the Plaintiff’s charge was unreasonable. See Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D2650b]; Virtual Imaging v. United Auto, 23 Fla. L. Weekly Supp. 516a (11th Cir. App.); Virtual Imaging a/a/o Leon v. State Farm, 23 Fla. L. Weekly Supp. 515a (11th Cir. App.); Virtual Imaging Services a/a/o Perez, Santana et al. v. United Auto, 23 Fla. L Weekly Supp. 304a (11th Jud. Cir. App. 2015).

For the reasons stated above, Defendant has not come forward with any admissible evidence which would create a genuine issue of material fact as to the reasonableness of Plaintiff’s charge.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the Plaintiff’s Amended Motion for Final Summary Judgment is GRANTED. The Court also notes this case has been in litigation for 1917 days with the amount in controversy being $1,666.98.