26 Fla. L. Weekly Supp. 239b
Online Reference: FLWSUPP 2603MILIInsurance — Personal injury protection — Coverage — Medical expenses — Summary judgment is granted in favor of medical provider as to relatedness and necessity of therapeutic exercises where insurer’s expert found exercises to be proper part of rehabilitation process, but expert had issues with provider’s record keeping that do not create disputed issue of material fact
DR. JOHN CALVANESE, D.C. (assignee of Milice, Huguens) Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO-15-001001. August 22, 2017. John D. Fry, Judge. Counsel: Abraham S. Ovadia, Ovadia Law Group, P.A., for Plaintiff.
ORDER ON PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT
THIS CAUSE, having come before this Court on Plaintiff’s Motion For Partial Summary Judgment on July 14, 2017 and it is hereby
ORDERED that:
1. Huguens Milice, hereinafter Patient, presented in Plaintiff’s office for treatment related to injuries from an automobile accident that occurred on 3-13-14.
2. The patient sought treatment form the plaintiff for injuries for dates of service April 3, 2014 through September 23, 2014.
3. The Defendant hired an expert, Brett E. Weinstein, D.C. to perform a compulsory medical evaluation and determined that certain treatments rendered by the Plaintiff were not related and necessary to the 3-13-14 accident.Findings of Fact and Conclusions of Law
4. The expert relied upon by the Defendant specifically found that CPT code 97110, therapeutic exercises to be “an intricate part of the rehabilitation process” However, he was under the opinion that said code should be denied for reimbursement due to issues he had with the record keeping. Based upon the facts and evidence presented, this appears to be his only issue with this code and basis for denying it.
5. Pursuant to present case law, record keeping is not a basis for denying payment regarding relatedness and necessity.1 Specifically noted in these cases is that “Other circuit courts, in their appellate capacity, have noted that a medical expert opinion asserting that a provider’s documentation is deficient without offering anything more does not create an issue of material fact to avoid summary judgment.” See State Farm Fire and Casualty Co. v. Central Magnetic Imaging Open MRI of Plantation, Ltd (a/a/o Evelyn Deshommes), 21 Fla. L. Weekly Supp. 239a (Fla. 17th Jud. Cir. (Appellate) 2013). Thus, treatment performed under CPT code 97110 is deemed related and necessary to the accident on 3-13-14.
6. Dr. Weinstein also opined that an intermediate exam, CPT code 99213, should have been performed around April 28, 2014. Even though an intermediate exam was billed on May 1, 2014, the court did not have enough evidence to determine that this treatment took place and thus determined that the billing of 99213 on August 12, 2014 was related and necessary.
7. Dr. Weinstein opined that treatment for the first five weeks should not exceed three times per week until April 21, 2014 and then two times per week until June 3, 2014 when he determined that no further treatment was necessary and thus an issue of fact remains regarding the number of treatments per week provided to the patient outside of this opinion.
8. An issue of fact remains for CPT code 97140 for all dates of service and for CPT code 97110 for dates of service after June 3, 2014 and any occurrence more than that which is described in paragraph 7.
9. Dr. Weinstein opined that all treatment after June 3, 2014 was not related and necessary and thus there is an issue of fact remaining regarding these dates of service.
10. Plaintiff’s Motion is hereby granted in part and denied in part per the above findings.
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1See e.g., State Farm Fire and Casualty Co. v. Central Magnetic Imaging Open MRI of Plantation, Ltd (a/a/o Evelyn Deshommes), 21 Fla. L. Weekly Supp. 239a (Fla. 17th Jud. Cir. (Appellate) 2013) (agreeing with the fact that “Other circuit courts, in their appellate capacity, have noted that a medical expert opinion asserting that a provider’s documentation is deficient without offering anything more does not create an issue of material fact to avoid summary judgment.”); Sevila Pressley Weston v. United Auto. Ins. Co., FLWSUPP 2104WEST (Fla. 11th Jud. Cir. (Appellate) 2013) [21 Fla. L. Weekly Supp. 306b] (explaining that “[i]n order to refute relatedness, United Auto had to present actual and/or factual evidence which would purport to more or less show that the injuries and subsequent medical treatment did not arise out of the subject accident. Alleged deficient recordkeeping cannot satisfy this requirement . . .”); Michael J. Delesparra, D.C., P.A. (a/a/o Joseph Walkens) v. MGA Ins. Co., Inc., 19 Fla. L. Weekly Supp. 854c (Fla. Broward Cty. Ct. 2012) (Judge Lee struck Defendant’s affirmative defense and reasoned that the failure to maintain adequate medical records is not a defense to payment in a PIP case.); Nob Hill Chiropractic (a/a/o Kenrick Grant) v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 195a (Fla. Broward Cty. Ct. 2013) (Judge Cowart granted Plaintiff’s Motion in Limine and reasoned that “since the PIP statute does not specifically provide that inadequate record keeping is a lawful basis for non-payment, it may not form a lawful basis as to non-payment of the medical charges.”); South Florida Pain & Rehabilitation, Inc. (a/a/o Kirt Godfrey) v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 981b (Fla. Broward Cty. Ct. 2009) (Judge Trachman granted Plaintiff’s motion for summary judgment as to RRN and reasoned that “any opinion regarding the adequacy of the records is not germane to the issue of RRN. An alleged failure to maintain adequate records is not a legal basis to support the finding that the medical services were not RRN.”); Dr. Kim Reddick, DC PA (a/a/o Patricia Camblin) v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 487b (Fla. Volusia Cty. Ct. 2012) (Judge Feigenbaum reasoned that an expert affidavit addressing minimal record keeping standards and administrative violations are not relevant to the issue of whether the treatment provided is reasonable, related, or medically necessary.); Right Choice Medical & Rehab. Corp. (a/a/o Martha Alvarez) v. State Farm Fire and Casualty Co., 21 Fla. L. Weekly Supp. 181a (Fla. Miami-Dade Cty. Ct. 2011) (Judge Pando granted final judgment in favor of Plaintiff and followed Judge Trachman’s reasoning that “any opinion regarding the adequacy of the records is not germane to the issue of RRN. An alleged failure to maintain adequate records is not a legal basis to support the finding that the medical services were not RRN.”); Ali v. McCarthy, 17 Fla. L. Weekly Supp. 661a (Fla. Seminole Cty. Ct. 2010) (Judge Simmons granted Plaintiff’s motion for protective order and reasoned that the Defendant does not have standing to assert any violations of any administrative code, regulatory statute, licensing requirements or medical record standards and that such an inquiry into any of this “does not go to the efficacy of treatment, causal connection or reasonableness of the charge and is therefore not reasonably calculated to lead to the discovery of admissible evidence.”).
