26 Fla. L. Weekly Supp. 327a
Online Reference: FLWSUPP 2604LIBEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness, relatedness and necessity of treatment — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issues of reasonableness of charges and relatedness and medical necessity of treatment — Allegations in affidavit of insurer’s expert concerning sufficiency of provider’s medical record keeping, upcoding, and CPT coding issues do not create issues of fact where those issues were not raised as affirmative defenses — Expert’s opinion as to reasonableness of charges that is not based on anything other than his own experience and fact that Medicare and health insurance reimburse less than provider’s charges fails to create genuine issue of material fact
COAST CHIROPRACTIC CENTER, a/a/o Amichelot Liberal, Plaintiff, v. STATE FARM MUTUAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-000151 COCE 51. June 18, 2018, Betsy Benson, Judge. Counsel: Dalton Thomas and Ross Abramowitz, Galsterer Abramowitz, Ft. Lauderdale, for Plaintiff. Michael Podolsky, Bronstein and Carmona, Ft. Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT AS TO NECESSITY,REASONABLENESS AND RELATEDNESS
THIS CAUSE came before the Court on May 2, 2018 on Plaintiff’s Motion for Final Summary Judgment as to Necessity, Reasonableness and Relatedness. The issue raised by the Plaintiff’s Motion is whether the treatment rendered to Amichelot Liberal was reasonable in price, related to the automobile accident that occurred on April 8, 2009, and was medically reasonable and necessary.
The Court having reviewed Plaintiff’s Motion for Final Summary Judgment with supporting evidence, Defendant’s filings 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 Plaintiff’s Motion for Final Summary (except as to the medical necessity of CPT codes 97010, 97012, G0283, and 97035 on dates of service past 05/08/09, and as to all CPT codes on dates of service 4/10/09, 4/14/09, 06/02/09, and 06/09/09), and makes the following factual findings and conclusions of law.
Background and Findings of Fact
Amichelot Liberal was involved in an automobile accident on April 8, 2009 and treated with Coast Chiropractic Center from April 9, 2009 through June 26, 2009 in relation to injuries sustained in said accident. Plaintiff, as assignee of a policy of insurance issued by the Defendant submitted its bills in the amount of $10,855.00 for treatment to Amichelot Liberal to Defendant for PIP benefits.
On June 6th, 2017, Plaintiff filed an affidavit of Dr. Troy Lomasky, D.C., with respect to the issue of the reasonableness of the charges submitted, and the relatedness and medical necessity of care and treatment rendered to Amichelot Liberal. In his affidavit, Dr. Lomasky testifies that the care and treatment provided by the Plaintiff from April 9, 2009 through June 26, 2009 was medically necessary and related to the injuries sustained by Amichelot Liberal in an automobile accident that occurred on April 8, 2009.
Dr. Lomasky’s affidavit further testifies that all of the CPT codes at issue are reasonable in price. A copy of the Patient Statement Billing Ledger reflecting the treatment rendered to Amichelot Liberal from April 9, 2009 through June 26, 2009 are attached to Dr. Lomasky’s affidavit.
On June 6, 2017, Plaintiff filed its Motion for Final Summary Judgment as to Necessity, Reasonableness and Relatedness.
On April 24, 2018, Defendant served its Affidavit of Michael W. Mathesie, D.C., in Opposition to Plaintiff’s Motion for Final Summary Judgment as to Necessity, Reasonableness and Relatedness. Dr. Mathesie opines that some, but not all, treatment rendered by the Plaintiff was medically necessary. As to the reasonableness of the Plaintiff’s charges, the essence of Dr. Mathesie’s opinion is that nothing above 200% of Medicare Fee Schedule Rate would ever be a reasonable charge.
Legal Analysis
I. Summary Judgment Standard
Florida Rule of Civil Procedure 1.510(c) provides that “judgment sough 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 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 plaintiffs 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].
Plaintiff, as movant, has the initial burden of tendering sufficient evidence to demonstrate the nonexistence of genuine issue of material fact. If Plaintiff meets its prima facie burden. Defendant, as the opposing party, ‘must come forward with counterevidence sufficient to reveal a genuine issue”. Landers v. Milton, 370 So. 2d 368 (Fla. 1979). A trial court cannot consider inadmissible evidence in determining the disposition of a motion for summary judgment.” Rose v. ADT Sec. Servs., 989 So. 2d 1244 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D2162b].
II. Relatedness of Treatment
The record evidence before this Court is undisputed as to the occurrence of an accident on April 8, 2009 and that treatment rendered by Plaintiff was in relation to said accident. With respect to the issue of relatedness, in PIP cases “the medical treatment covered by the insurance policy is treatment that is related to the bodily injury arising out of the ownership, maintenance, or use of the motor vehicle. Sevila Pressley Weston v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 306b (Fla. 11th Cir. 2013)(Appellate Capacity) citing to In re Standard Jury Instructions in Civil Cases, 966 So.2d 940, 942 (Fla. 2007) [32 Fla. L. Weekly S563a]. In other words, relatedness is established by showing that injuries and subsequent medical treatment therefore arose out of a subject accident. Id. Dr. Lomasky’s affidavit opines that based on the consultation, examination and diagnostic tests, as well as the patient’s objective and subjective complaints, that Amichelot Liberal’s injuries are, with reasonable chiropractic probability, causally related to the April 8, 2009 motor vehicle accident.
To refute relatedness, the Defendant had to present actual and/or factual evidence which would purport to, more or less, show that the injuries and ensuing medical treatment did not arise out of the subject accident. However, Dr. Mathesie’s affidavit concedes that some of the treatment is related to the April 8, 2009 accident then goes on to state that other services “cannot be considered reasonable, related or medically necessary.” The mere denial by the Defendant that the treatment was related or medically necessary without the demonstration of some intervening act or circumstance eliminating the pre-existing relatedness does not create a genuine issue of material fact. Dr. Mathesie’s affidavit failed to present any competent evidence refuting the testimony of Dr. Lomasky or demonstrate any factual basis to conclude that Plaintiff treated Mr. Liberal for anything other than the injuries he sustained in the April 8, 2009 accident.
Accordingly, Plaintiff’s Motion is GRANTED as to the issue of relatedness of treatment provided.
III. Medical Necessity and ReasonablenessAffidavit of Dr. Lomasky
Dr. Lomasky’s affidavit details the initial complaints of Amichelot Liberal following the automobile accident of April 8, 2009, his diagnosis, and the treatment program prescribed and rendered. He opines that treatment, and services were provided in a manner that was in accordance with generally accepted standards of medical practice, were clinically appropriate and utilized to increase blood flow to the affected areas to alleviate pain, increase mobility and flexion and accordingly speed and assist the body in healing. Dr. Lomasky’s affidavit further opines that based on the consultation, examination and diagnostic tests, as well as the patient’s objective and subjective complaints, that Amichelot Liberal’s injuries were, with reasonable chiropractic probability, causally related to the April 8, 2009 motor vehicle accident.
The Court hereby finds that the evidence presented by Plaintiff, by way of Dr. Lomasky’s affidavit, meets Plaintiff’s prima facie burden to establish the medical necessity and reasonableness of the treatment and services provided.
Affidavit Testimony of Dr. Mathesie
Dr. Mathesie’s affidavit opines as to medical necessity of certain care and treatment beginning at paragraph 40. With regard to the reasonableness, relatedness, or medical necessity of the treatment, this Court declines to follow the testimony of Dr. Mathesie found within his affidavit with the exception of paragraphs 45 and 54.
Medical Record Keeping
In the present case, the Defendant has not timely raised affirmative defenses regarding insufficient record keeping, upcoding, or CPT coding issues, and accordingly are not presently an issue in the case. Fla. R. Civ. Pro. 1.140(h)(l). Therefore, the Court finds that the Defendant cannot utilize the testimony of Dr. Mathesie as a conduit to inject otherwise unpled affirmative defenses in this case. Broward Health & Rehab vs. State Farm Mutual Automobile Insurance Company, (Broward, County Court, Case No. COCE 12-021042, Judge Lee, 10/13/2015).
In paragraphs 42, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53, 63, 64, 65, 66, and 67, Dr. Mathesie attempts to create issues of fact as to the medical necessity, reasonableness, and relatedness of treatment by raising issues with the sufficiency of the records. For instance, in paragraph 51, Dr. Mathesie attempts to create an issue of fact based upon the notes failing to document the “extent” of the modality. In paragraph 44, Dr. Mathesie attempts to create issues of fact as to various CPT codes on 5/13/109 based upon the clinical records not substantiating the areas the modalities were applied.
Fla. Stat §627.736(7)(a) provides that when a physician is proffering an opinion on medical services based solely upon the review of the medical records, the opinion must be factually supported by the records reviewed. In other words, the reviewing physician cannot rewrite, misstate, or ignore the explicit findings contained in the records he is reviewing. Dr. Mathesie’s affidavit, either overlooks or misstates what the treating records explicitly provide. Coast Pain Relief Center (Gladys Granados-Deyell v. State Farm Mut. Auto. Ins. Co., 25 Fla. L. Weekly Supp. 200a (Broward Cty. Ct., April 12, 2017)(J. Lee) citing United Auto Ins. Co. v. Professional Medical Group, 18 Fla. L. Weekly Supp. 501a (11th Cir. App. 2010) and United Auto v. Professional Medical Group, 17 Fla. L. Weekly Supp. 520a (11th Cir. App. 2010)(Opinion of defense expert is unreliable and affidavit is inadmissible when it fails to take into account the entirety of what the actual treatment records provide).
For example in paragraph 64, Dr. Mathesie testifies “the CMS-1500 Form by the provider . . . is the material factual representation by the provider regarding which medical services or procedure was performed and actually documented in the medical record. The use of an AMA CPT Code is a representation that the medical service has been provided in its entirety.” Notably, in paragraph 43, Dr. Mathesie focuses on “the clinical evidence” clearly indicating that the claimant did not receive various services. Nevertheless, the records attached to his affidavit contain a copy of the CMS-1500 forms submitted by the Plaintiff which clearly demonstrate the medical services or procedures performed. Therefore, Dr. Mathesie’s affidavit is based on the false premise that if medical records are (in his mind) inadequate, then the service was not performed.
Several trial courts have ruled, and this Court agrees, that an argument or inference of deficient medical records does not correlate to evidence of a lack of medical necessity, reasonableness or relatedness for the treatment billed. See Nob Hill Chiropractic a/k/a Michael J. Cohen DC PA (a/a/o Kenrick Grant) v. State Farm Mutual Automobile Insurance Co., 21 Fla. L. Weekly Supp. 195a (Broward Cty. Ct. 2013; Priority Medical Centers, LLC (a/a/o Arlene Robinson-Rampone) v. State Farm Fire and Casualty Co., 21 Fla. L. Weekly Supp. 201b (Broward Cty. Ct. 2013). The opinion of Dr. Mathesie fails to state an opinion based on facts. As previously noted, paragraphs 42, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53, 63, 64, 65, 66, and 67 of the affidavit of Dr. Mathesie pertaining to allegations of deficient medical record keeping contain inadmissible summary judgment testimony and do not create a factual issue as to the medical necessity, reasonableness, or relatedness of the treatment billed.
Upcoding and Improper Modifier
In paragraphs 42, 52, 53, and 63 Dr. Mathesie testifies that CPT Code 99203 on 4/9/09 was upcoded and that 97124 on 5/15/09 was submitted using an improper modifier, thus both codes should be denied. As noted above, the Defendant has not timely raised affirmative defenses regarding upcoding or CPT coding issues, and accordingly are not presently an issue in the case. Therefore, the Court finds that the Defendant cannot utilize the inadmissible testimony of Dr. Mathesie as a conduit to inject otherwise unpled affirmative defenses in this case. See Couchman v. Goodbody & Co., 231 So.2d 842 (Fla. 4th DCA 1970); 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, Broward Health & Rehab Corporation a/a/o Nadeem Sayed, (id.).
Passive Modalities After 5/08/09 andConsecutive Daily Treatment
The Court finds that the only paragraphs of Dr. Mathesie’s affidavit which create an issue of fact are paragraphs 45 and 54. As to the medical necessity of CPT Codes 97010, 97012, G0283, and 97035 on dates of service past 05/08/09 Plaintiff’s motion is DENIED based upon paragraph 45 of Dr. Mathesie’s affidavit. As to the medical necessity of all CPT Codes on dates of service 4/10/09, 4/14/09, 6/02/09, and 6/09/09 Plaintiff’s motion is DENIED based upon paragraph 54 of Dr. Mathesie’s affidavit. As to all other CPT Codes and dates of service, Plaintiffs Motion is GRANTED as to the medical necessity and reasonableness of the treatment provided.
IV. 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. 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) [39 Fla. L. Weekly D1883c].
The affidavit of Dr. Lomasky states that Dr. Lomasky “reviews of what other chiropractic providers in the area charge as well as what insurers are reimbursing to various chiropractic providers.” He also speaks with “peers in the community from time to time about their prices” and relies upon his “experience as a practicing chiropractor and owner of my facility” to determine that his charges are reasonable. In addition to the affidavit, plaintiff also relies upon the law set forth in Pan Am Diagnostic Services, Inc. (a/a/o Fritz Telusma) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. Broward Cty. Ct. 2013) where Judge Lee set forth the following:
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. Ct. 2001).
A copy of the Patient Statement Billing ledger reflecting the charges of the treatment provided to Amichelot Liberal from April 9, 2009 through June 26, 2009 is attached to Dr. Lomasky’s affidavit.
The Court finds that the Plaintiff met its prima facie burden of establishing that its charges are reasonable. See Hallandale Open MRI, LLC (a/a/o Antonette Williams). Since the Plaintiff has met its burden, the burden of proof now shifts to the Defendant to establish a triable issue.Dr. Mathesie’s Affidavit Does Not Create a Genuine Issue of Fact
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 globally 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
(iv) 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).
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. Bell South Telecommunications, Inc., 138 So.3d 492 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b] (“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’s methodology is flawed since the relevant inquiry is not Defendant’s reimbursements but rather the reasonableness of Plaintiffs charges. After all, the question posed to a jury in a PIP case concerns prices and specifically whether the provider’s charges are reasonable.
As to charges, Dr. Mathesie never mentions other charges that would go to show how this provider’s charges are unreasonable. In fact, Dr. Mathesie states that the amounts billed by other providers do not provide any correlation to a reasonable charge. The one and only reference Dr. Mathesie makes to actual charges is to state that he “would have globally, charged $6,840.00” for these visits (see paragraph 24 of his affidavit). Yet, he does not breakdown how he would have come to that total figure or set forth any methodology or explanation as to why his charges should be the benchmark for determining reasonableness.
Dr. Mathesie also attempts to combine his pure opinions, which are not evidenced by facts or data, to reach a conclusion. For instance, in paragraph 38, Dr. Mathesie states that “not now and not in 2009, would the patient be able or willing to pay” the Plaintiff’s charges but fails to provide any evidence or a single source of his data evidencing the same. Dr. Mathesie concludes that charged amount is unreasonable to self-paying patients, and thus is unreasonable to the insurance carrier. ¶ 38.
Dr. Mathesie’s affidavit appears to be based on what an appropriate reimbursement level should be, instead of focusing on the reasonableness of the charges (or at least explaining how the reimbursement should affect the setting of prices).
Dr. Mathesie states that State Farm’s reimbursement is considered to be at the highest end of reimbursement rates for all health insurance carriers, and states that “. . .I have always accepted the amount allowed by State Farm as full payment for covered services . . . and consider this reimbursement amount very reasonable.” (See paragraph 26 of his affidavit.)
Dr. Mathesie goes on to make similar (and numerous) conclusory statements within his affidavit, focusing on State Farm’s reimbursement levels. These statements, taken to their logical conclusion, would stand for the proposition that it is his opinion that no provider should be charging any more than what State Farm is willing to reimburse.
Dr. Mathesie also discusses Medicare reimbursements. However, he fails to set forth a valid basis or methodology as to why the Plaintiff’s charges are “unreasonable” simply because Medicare and other methodologies reimburse less. The fact that Medicare and health insurance reimburse less than the amount billed by the Plaintiff, by itself, is insufficient to create a question of fact as to the reasonableness of the charged amounts here.
Based on the forgoing, this Court Holds that Dr. Mathesie’s opinion pertaining to reasonableness of charges fails to create a disputed issue of material of fact on the issue of reasonableness of Plaintiff’s charges.
Accordingly, Plaintiff’s Motion is GRANTED as to the issue of reasonableness of its charges.
Therefore. it is hereby,
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary 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 those 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.
