26 Fla. L. Weekly Supp. 233c
Online Reference: FLWSUPP 2603ALEXInsurance — Personal injury protection — Coverage — Medical expenses — 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 relatedness and necessity of treatment where affidavit relies on hearsay report of independent medical examination and is conclusory
DR. STUART B. KROST, M.D., P.A. (assignee of Alexander, Natalie) Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502013SC000683XXXXSB. November 16, 2017. Reginald Corlew, Judge. Counsel: Abraham S. Ovadia, Florida PIP Law Firm, P.A., for Plaintiff.
ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT REGARDINGREASONABLENESS OF CHARGES SUBMITTED BYPLAINTIFF, RELATEDNESS, AND MEDICAL NECESSITY
THIS CAUSE having come before the Court on Plaintiff’s Motion on November 9, 2017, and the Court having heard argument of counsel and being otherwise advised in the premises, it is hereby
ORDERED and ADJUDGED that:
This is a P.I.P. case. Plaintiff moves for partial summary judgment as to accident, reasonableness of charges, medical necessity of services, whether injuries were related to accident, and pricing of services. Plaintiff filed the affidavit of the treating physician in support of its motion.
As there were no payments, the issue of reasonableness is to be addressed at a later date.
The affidavit of the medical provider stating that the care given to the patient was related, and necessary is enough for Plaintiff to meet its burden of proof as to this element of the claim. United Automobile Insurance Co. v. Mendoza, 11 Fla. L. Weekly Supp. 299a (11th Jud. Cir. 2004) and Steven R. Cantor v. Star Casualty Insurance, 18 Fla. Weekly Supp 1195c (15th Judicial Circuit, County court 2011).
Where the moving party offers evidence to support its claim of the nonexistence of a genuine issue of material fact, the nonmoving party “must demonstrate the existence of such an issue or issues either by countervailing facts or justifiable inferences from the facts presented.” Carbonell v. Bell South Telecommun., 675 So. 2d 705 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1476a]. In order to create any genuine issue of a material fact regarding whether the subject medical expenses were reasonable, related or necessary, the Defendant is required to either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence. Rose v. Dwin, 762 So.2d 532, 533 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1083c].
Defendant has offered up the affidavit of Renaud St. Vil, MD in opposition to Plaintiff’s Motion for Summary Judgment on the issue of relatedness and necessity.
In Defendant’s affidavit, he indicates he physically examined the patient but ultimately comes to a conclusion that no treatment after October 18, 2011 is related and necessary to the accident on September 16, 2011, about a month prior to his examination.
Defendant’s affidavit does not discuss plaintiff’s treatment at all. It does not address any CPT codes or specific treatment he deems not related and necessary as it relates to Plaintiff’s treatment. It simply concludes “further medical treatment of any kind” and does nothing to support this finding. See Paragraph 15 of Defendant’s Affidavit.
Defendant did not review any documents, diagnostic tests, X rays, or anything to support his conclusion regarding treatment.
Defendant’s affidavit does reference the IME report dated October 18, 2011, and states that it is “attached hereto and expressly incorporated herein by reference as though full set forth.” See Defendant’s Affidavit.
The IME report itself is inadmissible evidence under McElroy v. Perry, 753 So. 2d 121 (Fla 2nd DCA 2000) [25 Fla. L. Weekly D111a] which held that “Report of physician hired by plaintiff’s insurance carrier to examine her for the purpose of assisting the carrier in its determination of whether the treatment plaintiff was obtaining was reasonable, related, or necessary was not admissible as a business record.” Thus, the court can only consider Defendant’s affidavit as it is.
Plaintiff’s argument why Dr. St. Vil’s affidavit is inadmissible relies on Frasher v. Fox Distributing of SW Florida, Inc., 813 So.2d 1017 (Fla. 2nd DCA 2002) [27 Fla. L. Weekly D788c]. There, the 2nd DCA held that “[a]n affidavit that relies on either hearsay or the plaintiff’s conclusory allegations as to the defendant’s actions or intentions is insufficient as a matter of law.” Here plaintiff claims both that Dr. St. Vil’s affidavit relies on hearsay and his ultimate conclusion is merely an allegation of all treatment after the purported cutoff date being unrelated and unnecessary.
Defendant’s affidavit is 15 paragraphs long and he discusses relatedness and necessity in the last paragraph, number 15 and simply states:
“Based on the medical findings from my October 18, 2011, physical examination of Nattali Alexander I concluded on that date within a reasonable degree of medical certainty that further medical treatment of any kind, including physical therapy and massage therapy, beyond October 18, 2011, for Nattali Alexander was not reasonable, was not medically necessary and was not related to the motor vehicle accident of September 16, 2011.”
This is the very definition of a paper issue being raised by the Defendant. Such an opinion does nothing to raise any issue of material fact and is clearly conclusory in nature, and, as such, there is no issue of material fact regarding the relatedness and necessity of Plaintiff’s treatment. Id.
