26 Fla. L. Weekly Supp. 664a

Online Reference: FLWSUPP 2608DSAAInsurance — Personal injury protection — Coverage — Medical expenses — Relatedness and medical necessity of charges — Opposing affidavit of insurer’s expert is insufficient to preclude entry of summary judgment on issues of relatedness and medical necessity of charges where affidavit was not filed and served in accordance with rule 1.510(c) — Reasonableness of charges — Opposing affidavit on reasonableness of charges is sufficient to preclude summary judgment on that issue — Fact that insurer did not elect statutory fee schedule method of reimbursement in policy does not mean that Medicare fee schedules are irrelevant when determining reasonableness of charges

DAVID SAAVEDRA, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, a foreign corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. General Jurisdiction Division. Case No. 2014-16124-SP-25-04. October 9, 2018. Carlos Guzman, Judge. Counsel: Walter A. Arguelles, Arguelles Legal, P.L., Miami, for Plaintiff. Tamar Hoo-Pagan, Vernis & Bowling of Broward, P.A., for Defendant.

ORDER ON PLAINTIFF’S MOTION FORSUMMARY JUDGMENT REGARDING THE ISSUE OFREASONABLENESS, RELATEDNESS ANDMEDICAL NECESSITY OF THE SERVICES AT ISSUE

THIS MATTER, having come before the Court for hearing on August 20, 2018, on Plaintiff’s Motion for Summary Judgment regarding the Issue of Reasonableness, Relatedness and Medical Necessity of the Services at Issue, the Court having reviewed each party’s respective motions, read relevant legal authority, heard argument from counsel of each party, and been sufficiently advised in the premises, finds as follows:

FACTUAL BACKGROUND

This matter originates from an automobile accident involving David Saavedra (hereinafter referred as the “Patient”) which occurred on or about July 16, 2010. As a result of the injuries sustained in the automobile accident, the Patient was treated at Professional Medical Building Group, Inc. from July 20, 2010, through November 09, 2010. Professional Medical Building Group, Inc. submitted bills for services rendered to the Plaintiff in a timely manner to the Defendant, State Farm Fire & Casualty Company. The Defendant tendered payment pursuant to the permissive payment methodology.

Soon thereafter, a demand letter was submitted on behalf of the Plaintiff. The Defendant responded to the demand letter and indicated that no further payment will be forthcoming as it paid pursuant to the terms and conditions of the policy of insurance at issue. As such, the Plaintiff filed suit against the Defendant. The Plaintiff has filed its Motion for Summary Judgment regarding the issue of reasonableness, relatedness and medical necessity. In support of its Motion for Final Summary Judgment, the Plaintiff has filed the affidavits of Peter Hernandez, the Corporate Representative of Professional Medical Building Group, Inc., and Dr. Jose Marquez, M.D. The Defendant on the other hand, has filed the affidavits of Dr. Peter Millheiser, M.D., and Darrel Spell.

ANALYSIS

Summary judgment is only appropriate “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 Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]. The burden is on the party moving for summary judgment to prove a “complete absence of a triable issue of material fact, and the proof must be such as to overcome all reasonable inferences which could be drawn in favor of the non-moving party.” Aagaard-Juergensen, Inc. v. Lettelier, 540 So.2d 224 (Fla. 5th DCA 1989) (citing Landers v. Milton, 370 So.2d 368 (Fla. 1979)). Additionally, the moving party must disprove or establish as legally insufficient the non-moving party’s affirmative defenses. Stop & Shoppe Mart. Inc. v. Mehdi, 854 So.2d 78A (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2089b]. Since “summary judgments deprive the losing party of his or her day in court,” such motions should be granted only when there are no genuine issues of material fact to be resolved by the trial court. Villages at Mango Key Homeowners Ass’n, Inc. v. Hunter Dev., Inc., 699 So.2d 337, 338 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D2271b]. Simply stated, in the instant matter, the burden is on Plaintiff to establish that the charges at issue reasonable, related and medically necessary. Once the Plaintiff has established its prima facie case, the burden then shifts to the Defendant to establish a genuine issue of material fact. With that being said, it is not sufficient for the Defendant to simply state that the Plaintiff’s services are unreasonable, not medically necessary or related without providing insight as to how this determination was made. See Progressive Express Ins. Co.v Freidman, M.D., P.A, 14 Fla. L. Weekly Supp. 320c.

RELATEDNESS AND MEDICAL NECESSITY

Relatedness and medical necessity is established by showing that injuries and subsequence medical treatment arose out of a subject accident. See Sevila & Witt Pressley Weston v. United Automobile Insurance Company, 21 Fla. L. Weekly Supp. 306b (11th Judicial Circuit)(Appellate Capacity, November 26, 2013). See also In re Standard Jury Instruction in Civil Cases, 966 So. 2d 940, 942 (Fla. 2007) [32 Fla. L. Weekly S563a] (medical treatment covered by the insurance policy is treatment to the bodily injury arising out of the ownership, maintenance, or use of the motor vehicle). The Plaintiff has filed the affidavit of the treating physician, Dr. Jose Marquez, M.D. to establish its prima facie case on the issue of relatedness and medical necessity. Dr. Marquez indicates it is his medical opinion, within a reasonable degree of medical probability, that the injuries sustained were related to the subject automobile accident as the Plaintiff, did not exhibit any lingering symptoms or complaints in connection with any injuries which he may have been sustained in any prior automobile accidents. In addition, Dr. Marquez indicates that it is his medical opinion, within a reasonable degree of medical probability, that the services at issue were medically necessary as the services provided by Professional Medical Building Group were designed to restore, maintain, and promote optimal physical function as well as to prevent the onset, symptoms, and progression of impairments, functional limitations, and disabilities that may result from injuries sustained in the subject automobile accident.¹ As such, this Court finds that the Plaintiff has established its prima facie case on the issue of relatedness and medical necessity.

In order to create any genuine issue of material fact regarding whether the subject treatment and injuries was medically necessary and related, the Defendant is required to either substantially impeach the medical expert testimony of the treating physician, or present countervailing evidence from a licensed physician. Cicero Ortho-Med Center v. United Automobile Insurance Co., 11 Fla. L. Weekly Supp. 922a (Fla. Miami-Dade Cty. Ct., 2004); Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1993).

In an attempt to create a genuine issue of material fact, the Defendant requests that the Court takes into consideration the affidavit of Dr. Peter Millehsier, M.D. when analyzing the subject motion, however, to do so would be in violation of Rule 1.510(C) of the Florida Rules of Civil Procedures which indicates that the non-moving party “shall identify, by notice served pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies.” In this case, the Defendant failed to file and serve said affidavit upon Plaintiff and the Court in accordance to the rule. Although Courts have a preference to resolve cases on the merits rather than technicalities, the Rules of Civil Procedure are rules which are promulgated by the Florida Supreme Court and must be followed by all who litigate in civil proceedings within the state. This Court has no discretion to ignore the requirements set forth in Rule 1.510(C).

REASONABLENESS

In arguing reasonableness, the Plaintiff relies on the interpretation of AJ v. State, 677 So. 2d 935 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]. The Plaintiff argues to the Court that its prima facie showing of the reasonableness of the medical charges can be established merely by introducing the medical bill into evidence, along with testimony that the patient received the treatment in question. See also Pan Am Diagnostic Svsc., Inc. a/a/o Fritz Telusma v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. 17th Jud. Cir., October 1, 2013). “A medical bill constitutes the provider’s opinion of a reasonable charge for the services.” A.J., 677 So. 2d at 937. Plaintiff has filed the affidavit of Peter Hernandez, the Corporate Representative of Professional Medical Building Group, Inc. authenticating the subject medical bills and verifying that the services at issue were rendered to the Plaintiff. As such, the Plaintiff has established its prima facie case as to reasonableness.

The Defendant has filed the affidavit of Darrell Spell in opposition to Plaintiff’s Motion for Summary Judgment. Given the legal standard set forth, the Court finds that Mr. Spell is competent to provide testimony as to the issues of reasonableness and based on the averments set forth in his affidavit, genuine issues of material fact exist sufficient to preclude summary judgment. Specifically, the Court finds the testimony of Mr. Spell is based upon sufficient facts or data, is the product of reliable principles and methods, and that Mr. Spell has applied the principles and methods reliably to the facts of this case. § 90.702, Fla. Stat. Although the Defendant has failed to expressly elect the permissive payment methodology it does not mean that the Medicare Part B fee schedules are irrelevant when determining reasonableness under subsection 5(a)1.

Therefore, it is ORDERED and ADJUDGED that as a matter of law, Plaintiff’s Motion for Summary Judgment as to Relatedness and Medical Necessity is hereby GRANTED; Plaintiff’s Motion for Summary Judgment as to Reasonableness is DENIED.

__________________

¹Medically Necessary as defined by Florida Statute §627.736 means a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is in accordance with generally accepted standards of medical practice; clinically appropriate in terms of type, frequency, extent, site, and duration; and not primarily for the convenience of the patient, physician, or healthcare provider.