26 Fla. L. Weekly Supp. 33b
Online Reference: FLWSUPP 2601JSANInsurance — Personal injury protection — Coverage — Medical expenses — Related and necessary treatment — Summary judgment — Opposing affidavit and deposition filed by insurer do not preclude summary judgment in favor of medical provider on issues of relatedness and necessity of treatment where deposition was not filed with court and served on provider in accordance with rule 1.510(c), and affidavit is conclusory and attempts to improperly raise for first time issues of whether services were actually rendered and whether medical records were properly documented
JOSE CASTRO SANCHEZ, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. General Jurisdiction Division. Case No. 11-13229 SP 25 (1). January 3, 2018. Linda Diaz, Judge. Counsel: Walter A. Arguelles, Arguelles Legal, P.L., Miami, for Plaintiff. Rachel Minetree and Lauren White, Conroy Simberg, Miami, for Defendant.
ORDER GRANTING IN PART PLAINTIFF’SMOTION FOR FINAL SUMMARY JUDGMENT
THIS MATTER, having come before the court for hearing on December 8, 2017, on Plaintiffs Motion for Final Summary Judgment, the Court having reviewed each party’s respective motions, read relevant legal authority, heard argument from counsel of each party, and having been sufficiently advised in the premises, finds as follows:
LEGAL ISSUE
The issue before the Court is whether the services at issue are reasonable in pricing, medically necessary and related to the subject automobile accident.
PROCEDURAL HISTORYAND FACTUAL BACKGROUND
On or about September 30, 2008, the Plaintiff, Jose Castro Sanchez, was involved in an automobile accident in which he sustained injuries. As a result thereof, the Plaintiff sought medical attention at Professional Medical Building Group, Inc. . Bills were submitted by Professional Medical Building Group, Inc. to the Defendant, State Farm Mutual Automobile Insurance Company. The Defendant tendered payment for all the services rendered by Professional Medical Building Group, Inc. pursuant to 80% of the schedule of maximum charges referenced in Fla. Stat. §627.736(5)(a)(2)(f)(2008).1
The Plaintiff has filed its Motion for Final 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 Tim Cox, Dr. Kenneth Hodor, 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 784 (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. Friedman, 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 have any significant medical or surgical history which indicate that the Plaintiff suffered from similar complaints or injuries as those complained of during the initial examination. Moreover, the medical records indicate that the Plaintiff fully recovered from a prior automobile accident which occurred in 2007. 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. 2 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. Churn, 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 deposition testimony of Dr. Jose Marquez, 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 deposition transcript 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).Affidavit of Dr. Kenneth Hodor, M.D.
The Defendant has filed the affidavit of Dr. Kenneth Hodor, M.D. in opposition to Plaintiff’s Motion for Summary Judgment. Dr. Hodor indicates that in reviewing the medical records for 10/21/2008, it indicates that the patient received hot packs; electrical stimulation; therapeutic massage and ultrasound however nothing was checked off on the physical therapy form as such it is his opinions that services rendered for this date are not medically necessary or reasonable as he cannot substantiate that the services were in fact provided. This Court disagrees with Dr. Hodor’s assessment as the Defendant has failed to raise any defense asserting that the Plaintiff has billed for services not rendered. To allow the Defendant to raise an issue, for the first time, at this stage of litigation to defeat summary disposition is improper.3 Moreover, the affidavit of Peter Hernandez authenticates the services were in fact provided to the Plaintiff.
Dr. Hodor also indicates that the services at issue are not medically necessary or related as the medical records are not properly documented. The Court finds that Dr. Hodor’s opinion is conclusive in that it fails to establish a basis for his opinion upon sufficient facts or data, fails to show that it is it the product of reliable principles and methods and fails to show that Dr. Hodor has reliably applied the principles and methods to the facts of this case. In addition, the Defendant has not raised any defenses as to improper or insufficient record keeping. As indicated by the Third DCA, “affirmative defense must be plead in the answer and affirmative defenses not raised by answer are deemed to be waived.” Fink v. Powsner, 108 So.2d 324 (Fla. 3d DCA 1958). As such, this Court finds that the Plaintiff has established its prima facie case as to medical necessity and relatedness.
Therefore, it is ORDERED and ADJUDGED that as a matter of law, Plaintiff’s Motion for Final Summary Judgment as to medical necessity and relatedness is hereby GRANTED. Plaintiff’s Motion for Summary Judgment as to Reasonableness of the charges is hereby DENIED.
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1This Court previously ruled that the Defendant’s policy does not clearly and unambiguously notify the insured that it will tender payment pursuant to the permissive payment methodology of Fla. Stat. §627.736(5)(a)(2)(f)(2008).
2Medically 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.
3As stated by the Supreme Court, “litigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared. Arky, Freed, Stearns et. al. vs. Bomar Instrument Corp., etc. . 537 So.2d 561 (Fla. 1989). See also St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483 (Fla. 5th DCA 2002) [28 Fla. L. Weekly D131b] holding that a defense which is not pled in the answer or affirmative defenses is waived.
