26 Fla. L. Weekly Supp. 761a
Online Reference: FLWSUPP 2609ALEXInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Medical provider set forth prima facie showing on issue of reasonableness of MRI charge where undisputed evidence shows that multiple insurance carriers, including insurer, have paid provider’s charge at 80% of submitted amount — Opposing affidavit and deposition testimony of radiologist filed by insurer does not preclude summary judgment in favor of provider — Radiologist is not qualified as expert on reasonableness of diagnostic facility charges, his opinion is not admissible as lay opinion testimony, and he failed and refused to consider factors set forth in section 627.736(5)(a)
PAN AM DIAGNOSTIC SERVICES, INC. d/b/a PAN AM DIAGNOSTIC OF ORLANDO a/a/o Jean Alexandre, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-SC-009112-O. October 30, 2018. Faye L. Allen, Judge. Counsel: Alyson M. Laderman, The Orlando Law Group, PL, Altamonte Springs and Yigal D. Kahana, Miami, for Plaintiff. Erin Salay, Deland, for Defendant.
[Editor’s note: see 23 Fla. L. Weekly Supp. 759b; Reversed at 25 Fla. L. Weekly Supp. 580a.]
ORDER GRANTING PLAINTIFF’S MOTION FOR FINALSUMMARY JUDGMENT AND DENYING DEFENDANT’SAMENDED MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on October 15, 2018 on Plaintiff’s Motion for Final Summary Judgment (filed May 9, 2018) and Defendant’s Amended* Motion for Final Summary Judgment as to No Material Breach of Contract (filed September 13, 2018), and the Court, having reviewed the respective motions and the responses in opposition, the entire court file, all summary judgment evidence, the relevant legal authorities; having heard argument of counsel; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court hereby finds as follows:
Plaintiff, PAN AM DIAGNOSTIC SERVICES, INC. D/B/A PAN AM DIAGNOSTIC OF ORLANDO (“Pan Am Diagnostic” or “Plaintiff’), provided a lumbar MRI to Mr. Jean Alexandre on September 19, 2012. Plaintiff billed $2,150.00 for CPT code 72148 (lumbar MRI) provided to State Farm Mutual Automobile Insurance Company’s (“State Farm” or “Defendant”) insured pursuant to an assignment of benefits.
In response, State Farm paid benefits of $853.021, which State Farm admits is equivalent to 80% of 200% of the Medicare Part B fee schedule for the year 2007 for both services. It is undisputed that the policy at issue (State Farm’s 6910.3 amendatory endorsement) does not incorporate the permissive payment limitation in Fla. Stat. 627.736(5)(a)1.(2013).
It is uncontested that Plaintiff’s services at issue were medically necessary, related to the motor vehicle accident, and covered by Defendant’s policy of insurance. It is also uncontested that Mr. Alexandre properly assigned his benefits to Pan Am Diagnostic pursuant to a valid assignment of benefits and that Plaintiff sent a statutorily compliant demand letter to State Farm prior to filing suit.
The sole issue before this Court was whether Pan Am Diagnostic’s charge was reasonable as defined by Fla. Stat. Section 627.736(5)(a)(2013).
Procedural History
Plaintiff originally filed this matter in Miami-Dade County. On September 4, 2013, the Small Claims Division in and for Miami-Dade County, Florida granted Defendant’s Motion to Transfer Venue, transferring this matter to Orange County, Florida. On December 3, 2013, Defendant filed its “Answer, Defenses and Affirmative Defenses and Demand for Jury Trial,” raising several affirmative defenses. After some discovery was conducted, on May 22, 2014, Defendant filed an “Amended Answer and Demand for Jury Trial,” withdrawing all previously asserted affirmative defenses. On October 30, 2015, Judge Steve Jewett heard Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Final Summary Judgment as to Reasonableness of the Plaintiff’s Charges. Plaintiff relied upon the testimony of Ms. Roberta Kahana to establish that the charges were reasonable; Ms. Kahana is Plaintiff’s owner, corporate representative and person who established the amounts charged and amounts accepted as payment for Pan Am Diagnostic. Defendant relied upon the affidavit testimony of Dr. Michael J. Foley, radiologist, for its position that the amount paid by State Farm was reasonable. Plaintiff had not taken the deposition of Dr. Michael J. Foley at the time.
On November 19, 2015, Judge Jewett entered an “Order Granting Plaintiff’s Motion for Final Summary Judgment and Denying Defendant’s Motion for Final Summary Judgment.” In that order, the Court held that “the reasonableness of Plaintiff’s charge is not an issue to be considered because the Defendant breached the policy at issue as a matter of law.” The order further specifically states that, “the Court need not consider the sufficiency of the affidavit of Dr. Foley as countervailing summary judgment evidence to that presented by the Plaintiff.” On December 18, 2015, Defendant filed its Notice of Appeal.
On March 23, 2017, the Ninth Judicial Circuit, sitting in its appellate capacity, reversed the lower court’s “Order Granting Plaintiff’s Motion for Final Summary Judgment and Denying Defendant’s Motion for Final Summary Judgment” rendered on November 19, 2017, remanding the matter to the trial court for consideration of Dr. Foley’s affidavit.
Thereafter, Plaintiff’s counsel took the deposition of Defendant’s purported expert, Dr. Michael J. Foley, on June 11, 2018. Plaintiff also filed supplemental affidavits of Roberta Kahana showing the usual and customary amounts paid by ten different automobile insurance carriers to Pan Am Diagnostic for the year 2012-2013, including a payment from State Farm Fire and Casualty, a sister company to the Defendant in this matter. Defendant did not file any additional evidence to support its position and did not challenge the evidence proffered by the Plaintiff.
On October 15, 2018, counsel for Plaintiff and Defendant argued their respective motions for final summary judgment. This order granting Plaintiff’s Motion for Final Summary Judgment and denying Defendant’s Amended Motion for Final Summary Judgment follows.
Legal Analysis
It is clear that Defendant limited its payment for the subject charge to 200% of the 2007 Medicare Part B participating physician’s fee schedule. It is also clear and agreed upon by the parties that Defendant’s policy did not provide the statutorily required notice of election to limit payment pursuant to the schedule of maximum charges as required by Fla. Stat. §627.736(5)(a)5. (2103).
In support of its Motion for Final Summary Judgment, Plaintiff relies upon the multiple affidavits of Ms. Roberta Kahana, owner and corporate representative of Pan Am Diagnostic. In her affidavits, Ms. Kahana, who has owned and operated Pan Am Diagnostic facilities in both South Florida (since 2000) and Orlando (since 2009), was the one who set the charges for the CPT code at issue. She attested that Plaintiff’s charge for CPT code 72148 was reasonable; that she was the one who set the charge based upon the usual and customary charges in Orlando, Orange County, Florida, which she obtained through telephone calls to other local diagnostic service facilities; and that her charge was consistent with what others were charging for similar services. She further attested that since she set her charges at $2,150.00 in 2009, she has kept her charge the same rate and has received reimbursement of 80-100% of the charge submitted as a “reasonable charge” from automobile insurers. She received these payments from automobile insurers who did not apply the schedule of maximum charges payment methodology and/or who did not provide notice of their election to pay benefits pursuant to the schedule of maximum charges (as is the instant matter). Specifically, she attested that “Pan Am has routinely and customarily received payment for CPT code 72148 in the service calendar years of 2012-2013 from the following PIP insurance carriers for the following amounts:”
| Location | Amt. Billed | Amt. Allowed | Amt. Paid | Ins. Co. |
| Orlando | $2150.00 | $2150.00 | $1720.00 | 21st Century Centennial Ins. Co. |
| Orlando | $2150.00 | $2150.00 | $1720.00 | Ameriprise Auto & Home Ins. |
| Orlando | $2150.00 | $2150.00 | $1720.00 | Amica |
| Orlando | $2150.00 | $2150.00 | $1720.00 | EQI Ins. Svs. (Florida), Inc. |
| Orlando | $2150.00 | $2150.00 | $1720.00 | Geico |
| Orlando | $2150.00 | $2150.00 | $1720.00 | Geico General Ins. Co. |
| Orlando | $2150.00 | $2150.00 | $1720.00 | Geico Indemnity Ins. Co. |
| Orlando | $2150.00 | $2150.00 | $1720.00 | Infinity |
| Orlando | $2150.00 | $2150.00 | $1720.00 | State Farm Fire & Cas. Co. |
| Orlando | $2150.00 | $2150.00 | $1720.00 | The Hartford |
“Payments by State Farm constitute an admission that those charges are within the range of a reasonable charge.” Summit Radiology, LLC a/a/o Brisly Anicette v. State Farm Fire & Cas. Co., [26 Fla. L. Weekly Supp. 326a], (Fla. Broward Cty., 2018, Judge Jane D. Fishman); see also Pan Am Diagnostic Services, Inc. a/a/o Fritz Telusma v. United Auto Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. Broward Cty. 2013, Judge Robert W. Lee); see generally Sea World of Florida Inc. v. Ace American Ins. Co., 28 So. 3d 158, 160 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]. The record undisputed evidence shows that multiple automobile insurance carriers, including State Farm Fire and Casualty Company, have paid Plaintiff’s charge at 80% of the submitted amount for CPT code 72148 in Orlando, Orange County, Florida for the subject year 2012-2013.
The Court finds that Plaintiff met its burden to set forth its prima facie showing that the amount of $2,150.00 is a charge within a reasonable range. United Automobile Insurance Company v. Hallandale Open MRI, LLC (Antonette Williams), 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. App. December 11, 2013) cert den. 145So.3d 997 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1883c]; Pan Am Diagnostic Services, Inc. (Fritz Telusma) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Judge Lee, Broward Cty. Ct. 2013); Millennium Radiology, LLC (Roberto Diaz) v. United Automobile Ins. Co., 22 Fla. L. Weekly Supp. 1100a (Judge Zaccor, Broward Cty. Ct. 2015); Faye Imaging v. State Farm Mut. Auto Ins. Co., 23 Fla. L. Weekly Supp. 182a (Judge DeLuca, Broward Cty. Ct. 2015); Hallandale Open MRI, LLC., (Carnes Vilatte) v. United Automobile Insurance Company, 22 Fla. L. Weekly Supp. 851a (Judge Miranda, Broward Cty. Ct. 2015); Pan Am Diagnostic Services Inc., d/b/a Wide Open MRI, (Svetlana Pimanova) v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 650a (Judge DeLuca, Broward Cty. Ct. 2014); Coastal Radiology, LLC (Daniel Fornes) v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 396a (Judge Lee, Broward Cty. Ct. 2014); Palms MRI Diagnostic Imaging Centers, Inc, (Frank Sirker) vs. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 393b (Judge Schiff, Broward Cty. Ct. 2014); Hallandale Open MRI, LLC, (Jean Wilkens Saint-Ange) vs. United Automobile Insurance Company, 22 Fla. L. Weekly Supp. 149a (Judge Fry, Broward Cty. Ct. 2014); Hallandale Open MRI, LLC (Mickael Cohen) vs. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 140a (Judge Dishowitz, Broward Cty. Ct. 2014); Florida Wellness & Rehabilitation Center, Inc., (a/a/o Jose Ferrer), vs. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 837a (Judge Pedraza, Miami-Dade Cty. Ct. 2014); A1A Management Services, LLC d/b/a Roberto Rivera-Morales, M.D., (a/a/o Farano Muselaire) vs. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 835c (Judge Gonzalez-Meyer, Miami-Dade Cty. Ct. 2015); Roberto Rivera-Morales, M.D., (a/a/o Humberto Clavijo), vs. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 833b (Judge Gonzalez-Paulson, Miami-Dade Cty. Ct. 2014). Plaintiff’s charge is based upon what Pan Am Diagnostic (the provider involved in the dispute) accepts as payment for CPT code 72148; Pan Am Diagnostic’s usual and customary charges for CPT code 72148; and the reimbursement levels in the community. See Fla. Stat. Section 627.736(5)(a)(2013).
Plaintiff not only meets the standard by properly introducing the bill and assignment of benefits as evidence, but goes beyond the minimum requirements to make its prima facie showing of reasonableness with the multiple affidavits of Roberta Kahana as the owner and corporate representative of Pan Am Diagnostic as set forth above. See generally, Reliance Ins. Co. v. Pro-Tech Conditioning & Heating, 866 So.2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c].
The Court is convinced that Ms. Roberta Kahana’s personal knowledge, background and testimony show that she has fully assessed the reasonableness of the charges of the lumbar MRI at issue. This specific CPT code and charge has been billed many times and paid many times as personally acknowledged and observed by Ms. Kahana. As an owner of Pan Am Diagnostic, Ms. Kahana has personal knowledge of the valuation of the services at issue and established that the charges are reasonable as they were set in accordance with what she learned other facilities were charging for similar services, and what Pan Am Diagnostic receives in Orlando, Orange County, Florida, as usual and customary reimbursements for the same services, to-wit: 80-100% of her billed charges.
Ms. Kahana is qualified to testify as a layperson as to the reasonableness of the subject charge by virtue of her status as owner and corporate representative of Pan Am Diagnostic. Ms. Kahana is (and has been for the last 18 years) the person responsible for setting the Plaintiff’s charges and is personally familiar with the company’s billing practices, office procedures, collection practices, reimbursement trends for Plaintiff’s services, and charges in Orlando, Orange County, Florida. Ms. Kahana has more than sufficient personal knowledge as to Pan Am Diagnostic’s usual and customary charge for the subject CPT code, as well as personal knowledge of the usual and customary payments accepted by Pan Am Diagnostic for same. Simply put, she sees all the bills and accepts all the payments for Plaintiff. It is clear that Plaintiff has established through competent evidence that the charge for the service at issue was within a reasonable range in Orlando, Orange County, Florida in 2012-2013.
Once a party moving for summary judgment presents competent evidence to support its motion for summary judgment, that party is entitled to summary judgment unless the nonmoving party can come forward with competent evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla. 1979). Under Rule 1.510(e), a court may consider evidence at a summary judgment hearing only if it would be “admissible in evidence.”
“Since Plaintiff has met its burden, the burden of proof now shifts to the Defendant to establish a triable issue.” Health Diag. of Ft. Lauderdale, LLC d/b/a Stand-Up MRI of Fort Lauderdale, a/a/o Gertrudis Connell, v. State Farm Mut. Aut. Ins. Co., 24 Fla. L. Weekly Supp. 754a (Fla. Broward Cty., Judge John D. Fry, 2016). Florida law is clear that a Defendant cannot defeat a summary judgment motion by creating “paper issues” where the alleged defenses are without substance in fact or law. Id. referring to Hialeah Medical Assoc. Inc. a/a/o Ana Lexcano v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b Fla. 11th Cir. Ct. App. 2014). “It is not sufficient for the opposing party to merely assert that a triable issue exists.”
Here, Defendant has failed to present competent, admissible evidence to rebut Plaintiff’s prima facie showing that their charge is reasonable. As to the reasonableness of Plaintiff’s charge, Defendant is relying solely upon the 2015 affidavit and 2018 deposition testimony of Hillsborough County radiologist Dr. Michael J. Foley. The Court has fully considered the deposition and affidavit testimony of Dr. Foley and has determined that he is not an expert as it relates to the reasonableness of a diagnostic facility’s charges. Not only is Dr. Foley not an expert in the area for which he was proffered, but he also failed and refused to consider the factors set forth in Fla. Stat. Section 627.736(5)(a)2 to determine reasonableness of the subject charge.
To qualify as an expert, the witness must have “the requisite knowledge, skill, experience, training, or education on the subject about which the witness is called to testify.” State Farm Mut. Auto. Ins. Co. v. Long, 189 So. 3d 335, 338 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D995a]. An expert must establish accurate essential foundation facts in support of the expert’s opinion. State Dep’t of Corr. v. Junod, 217 So. 3d 200, 206 (Fla. 1st DCA 2017) [42 Fla. L. Weekly D870a]. The proponent of expert testimony must, when properly challenged, establish the basis for its admissibility by a preponderance of the evidence. Baan v. Columbia County, 180 So. 3d 1127, 1131-32 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D2707a]. It is clear that Dr. Foley does not have the requisite knowledge, skill, experience, training, or education as to MRI charges, coding, pricing, billing or the reasonableness of MRI charges in Orlando, Orange County, Florida. Expert testimony must be genuinely scientific rather than “unscientific speculation offered by a genuine scientist.” Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir. 2014) [25 Fla. L. Weekly Fed. C416a].
Dr. Foley has never taken any educational courses in billing and coding.3 Likewise, Dr. Foley is not a member of any professional societies that relate to billing and coding.4 Out of 34 total publications, Dr. Foley has never been published in the areas of billing and coding.5 None of Dr. Foley’s research experience has anything to do with the reasonableness of radiology charges.6 Dr. Foley has never been published regarding reasonableness of MRI charges.7 Dr. Foley has nine (9) scientific exhibits, none of which involve billing, pricing, coding, or the reasonableness of radiology charges.8 Dr. Foley has completed over 212 scientific presentations, none of which involve the reasonableness of charges, pricing, billing, or coding of MRI studies.9 Dr. Foley does not have any personal experience setting any rates in Orlando, Orange County, Florida.10 In fact, Dr. Foley has never practiced medicine or have any relationship with or to Orlando, Orange County, Florida at all.
As for pricing and billing experience, Dr. Foley’s closest experience to setting pricing was when Dr. Foley served as a member of the Physician Reimbursement Committee, Society of Cardiovascular and Interventional Radiology from 1995 to 2007 (5 years prior to the subject charge). This committee dealt with figuring out how to set prices for novel, or new procedures. 11 Dr. Foley admitted, however, that a lumbar MRI was an already existing procedure, and as a result, he never specifically dealt with the coding of a lumbar MRI with this committee.12 He also admittedly never reviewed any lumbar MRI pricings with this committee.13 Moreover, Dr. Foley cannot specifically remember what the pricing was for a lumbar MRI during this time period.14
Dr. Foley has held three board certifications: (1) Diagnostic Radiology, (2) Nuclear Radiology, (3) Interventional radiology.15 Dr. Foley confirmed that none of these certifications involved medical coding and billing.
Dr. Foley testified that when he was the chairman of the Radiology Department at his last hospital affiliation in 2003 (9 years before the subject charges and in a location outside of Orlando, Orange County, FL), he would “interact with the CEO regarding our payment for the radiology group; and, you know, I would get to see the payments the hospital was charging.”16 When pressed on the amount of the charges for his facility, he responded that he did not know and could not currently remember.17
From 2003 to 2009 (3 years prior to the subject charges), Dr. Foley was one of the owners of Bloomingdale Radiology (not located in Orlando, Orange County, Florida); Dr. Foley claims that he would set prices along with one other doctor.18 When asked what the pricing was for a Lumbar MRI at that time, Dr. Foley stated, “At that time, I do not know. It’s been so long ago.”19
When asked what percentage of testimony Dr. Foley provides in relation to the reasonableness of PIP charges, Mr. Foley responded that it was a “very small amount,” because most of what he does and is asked to do is review films and records.20 For the years 2012-2015, Dr. Foley testified 472 times; of those times, only 68 were in Orange County, Florida and of those 68 only three21 included an evaluation of whether a charge was reasonable. For those three cases, Dr. Foley could not recall the name of the MRI facilities; what codes were at issue; what the charges were for; or the amount of the charges. Further, he specifically did not review those charges or cases in determining whether the subject charges at issue were reasonable because he “just looked at this case as an independent case.”22
Dr. Foley’s current practice involves approximately 99% expert witness services. At most, Dr. Foley takes no more than an estimated 12 private, non-expert testimony related cases per year with Rose Radiology (with none of its offices located in Orlando, Orange County, Florida).23 With radiology services rendered at and for Rose Radiology, Dr. Foley, “typically wouldn’t see the bill.”24 Dr. Foley confirmed that he does not have any idea what his employer, Rose Radiology, currently charges for a lumbar MRI.25 When asked whether Dr. Foley knew what Rose Radiology received as payment from an automobile insurance carrier for an MRI, Dr. Foley responded, “I would imagine they get the typical payments that we used to get from Medicare, Medicaid, workers’ comp.”26 The only thing consistent and reliable about Dr. Foley’s testimony is his ability to “guess,” “imagine,” and create general statements out of thin air as it relates to actual, trackable, verifiable charges for MRI studies.
Prior to Rose Radiology, Dr. Foley worked for the New Tampa Imaging Center for about ten months around 2009 (not located in Orlando, Orange County, Florida).27 Similar to his experience with Rose Radiology, Dr. Foley was not involved with pricing at this facility; he did not prepare his own bills; and he did not see the bills sent to the carrier or the payments that were received.28 Again, when asked if he knew what New Tampa Imaging Center charged for a lumbar MRI during his time working there he stated, “I do not. I don’t think that I do.”29
Prior to that, Dr. Foley worked for Teleradiology Associates from 1983 to 2003 (not located in Orlando, Orange County, Florida).30 Again, Dr. Foley was not involved in setting pricing for MRI’s for that facility; he did not see any of the bills submitted or what the charges were.31 Likewise, for any MRI facility that Dr. Foley owned, he did not handle the billing, and someone else collected the money on behalf of his companies.32
Dr. Foley appears to be an experienced radiologist who can read MRI studies and films. However, Dr. Foley does not qualify as an expert as to the reasonableness of a lumbar MRI charge for services rendered in Orlando, Orange County, Florida that is covered under an automobile insurance policy (PIP). Dr. Foley’s knowledge of medical coding and billing comes from setting prices for procedures that did not currently exist, and by coming into “contact” with various bills throughout his medical career across the United States and during the time he has spent as an expert witness as a radiologist. Dr. Foley is unable to produce any of the data he relied upon either throughout his career as a medical professional, or as an expert witness. Accordingly, Dr. Foley is not qualified to testify as to the reasonableness of Plaintiff’s charges in Orlando, Orange County, Florida in 2012-2013. Dr. Foley’s pure opinion testimony serves as nothing more than inadmissible hearsay. It is not based on sufficient facts or data, and his opinion is not based upon a reliable methodology.33
Furthermore, Dr. Foley, despite acknowledging Florida Statute Section 627.736(5)(a), testified that he does not “think what is accepted by the provider sets the rate.”34 He further testified that he did not see or consider amounts that Plaintiff accepted as a usual and customary practice for the same services in the same year in the same location. He also failed to review any prior reimbursements from State Farm for the years 2012-2013 for lumbar MRI services in Orlando, Orange County, Florida. Instead, his sole consideration as to what he deemed a reasonable charge were amounts allowed by “Medicare Part B payments and Medicaid payments, Florida Workers’ Comp payments.”35
However, “any testimony concluding that an amount below 200% of the 2007 Medicare part B fee schedule is the maximum reasonable charge is irrelevant and cannot create a question of fact regarding the reasonableness of charges above 200% of the Medicare amount.” See Best American Diag. Center, Inc. a/a/o Obdulia Romaguera v. United Auto. Ins. Co., 25 Fla. L. Weekly Supp. 279a (Fla. Miami-Dade Cty. 2017, Judge Caryn Schwartz).
When further pressed and asked whether he considered the reimbursement levels in the community as set forth in Fla. Stat. Section 627.736(5)(a), he testified that “I don’t think I have to look at somebody else’s bills. I have to look at the payers of those bills.”36 Yet, he did not look at the payer of those (or any other) bills37. He again confirms — in no uncertain terms — that he did not look at any reimbursements from State Farm to medical providers in 2012 to 2013 in Orlando, Orange County, Florida for a lumbar MRI. When pushed on the “payers of those bills,” he testified that he did not review or consider amounts made by other automobile insurers,38 including State Farm. Instead, he did exactly what he was paid to do — look only at this case, consider only Medicare fee schedules, look at what State Farm paid in this matter, and sign an affidavit that was prepared by State Farm’s lawyers39. It is clear from the record evidence that Dr. Foley refused to properly consider, review, and evaluate the factors set forth in Fla. Stat. Section 627.736(5)(a) to determine whether a charge is reasonable; accordingly, he failed to consider or evaluate those statutory factors reliably.
Dr. Foley’s sole testimony is essentially that since State Farm paid 200% of Medicare fee schedule rates, and that that amount is more than “fair” and “reasonable.”40 Dr. Foley believes that “[t]ypically the best rate that people are reimbursed is the Medicare rate.”41 His statement of what Medicare allows is insufficient. See Health Diag. of Ft. Lauderdale, LLC d/b/a Stand-Up MRI of Fort Lauderdale, a/a/o Gertrudis Connell, v. State Farm Mut. Aut. Ins. Co., 24 Fla. L. Weekly Supp. 754a (Fla. Broward Cty., Judge John D. Fry, 2016).
His testimony neither satisfies the expert testimony requirements, nor is admissible lay opinion testimony. Lay testimony is only permitted if it is based on what the witness has personally perceived and usually involves matters such as distance, time, size, weight, form and identity. Fino v. Nadine, 646 So. 2d 746 (Fla. 4th DCA 1991), citing Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So. 2d 140 (Fla. 4th DCA 1985). If proffered as a lay witness, Dr. Foley’s testimony would not be based upon scientific, technical, or other specialized knowledge. Health Diag. of Ft. Lauderdale, LLC d/b/a Stand-Up MRI of Fort Lauderdale, a/a/o Gertrudis Connell, v. State Farm Mut. Aut. Ins. Co., 24 Fla. L. Weekly Supp. 754a (Fla. Broward Cty., Judge John D. Fry, 2016) citing Millennium Radiology, LLC d/b/a Millennium Open MRI a/a/o Melvin Galdamez v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Fla. Broward Cty. Ct. 2013). See also United Automobile Insurance Company v. Miami Neurology Rehabilitation Specialists a/a/o Maria Broche, 19 Fla. L. Weekly Supp. 799a (11th Cir. App. June 19, 2012)(Testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness, and not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702). Because the opinions offered by Dr. Michael J. Foley are not rationally based on his own perception of conditions in Orlando, Orange County, Florida for 2012-2013, they are not the type of lay opinions upon which Defendant can rely to support its position that Plaintiff’s charges were not within a reasonable range in Orlando, Orange County, Florida for 2012-2013. It is clear that Dr. Foley has no such knowledge based upon his affidavit and deposition testimony. His generalized testimony based upon his “experience” as a radiologist is nothing more than inadmissible pure opinion testimony. Health Diag. of Ft. Lauderdale, LLC d/b/a Stand-Up MRI of Fort Lauderdale, a/a/o Gertrudis Connell, v. State Farm Mut. Aut. Ins. Co., 24 Fla. L. Weekly Supp. 754a (Fla. Broward Cty., Judge John D. Fry, 2016).
Essentially, Dr. Foley’s opinion is that Plaintiff’s charges are unreasonable because 100% of Medicare, Medicaid, and Florida Workers’ Compensation pay less than the amount of the Plaintiff’s charge. Of note, Plaintiff did not accept Medicare or Medicaid at the time of the subject charges and only had approximately 1% of its cases involving workers’ compensation claims. Therefore, these amounts are not usual and customary payment amounts accepted by Pan Am Diagnostic in Orlando, Orange County, Florida for 2012-2013. It is clear that Dr. Foley did not use a scientific method or approach in coming up with his pure opinion testimony and conclusion; in fact, he did not even confirm that the numbers in the affidavit [that was presented to him by State Farm’s counsel to sign] were correct.42
As a matter of law, Dr. Foley’s testimony is not based upon his own perception and is not the type of lay opinion that can be relied upon by State Farm in this matter. In addition, his conclusory statements are inadequate to create an issue of fact and are insufficient to avoid summary judgment. The only thing that Dr. Foley has done effectively, was to confirm that he is aware of (but did not consider) Plaintiff’s usual and customary charge for the subject services in the subject location for the subject year are the exact amount that was billed in this case.43
The record is clear that there is no evidence that Dr. Foley is qualified to give any opinions in this case on what a reasonable charge is for the MRI at issue in Orlando, Orange County, Florida for 2012-2013. “His knowledge of what medicare [sic] and what some private [health] insurance pay for MRIs does not make him qualified to state a billed amount is unreasonable in this case as there is no methodology or analysis.” Health Diag. of Ft. Lauderdale, LLC d/b/a Stand-Up MRI of Fort Lauderdale, a/a/o Gertrudis Connell, v. State Farm Mut. Aut. Ins. Co., 24 Fla. L. Weekly Supp. 754a (Fla. Broward Cty., Judge John D. Fry, 2016). Dr. Foley’s testimony is not the product of reliable principles and methods, and there cannot be a reliable application of them. Dr. Foley’s affidavit and deposition testimony fail “to provide what MRI providers accept as payment in full, what PIP insurers pay when the insurer pays based on a reasonable amount, a factual basis to establish that he is qualified to give opinions on what a reasonable charge is for an MRI in the same location as the Plaintiff for the same year at issue in this lawsuit, or any analysis as to how he arrived at his opinions.” See Health Diag. of Ft. Lauderdale, LLC d/b/a Stand-Up MRI of Fort Lauderdale, a/a/o Gertrudis Connell, v. State Farm Mut, Aut, Ins. Co., 24 Fla. L. Weekly Supp. 754a (Fla. Broward Cty., Judge John D. Fry, 2016), referring to State Farm v. Hallandale Open MRI, LLC a/a/o Richard Ayer, Case No. CACE14-011565(AP) (Fla. 17th Jud. Cir. Appellate 2015) [21 Fla. L. Weekly Supp. 837a]. As such, Dr. Foley’s testimony, in all forms, fails to create a triable issue of fact.
Conclusion
For the reasons stated above and after giving full consideration of the testimony provided by Dr. Michael J. Foley, the Court finds that the Defendant has not come forward with any admissible evidence that would create a genuine issue of material fact as to the reasonableness of Plaintiff’s charge in Orlando, Orange County, Florida for 2012-2013.
Accordingly, it is hereby ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. Plaintiff, PAN AM DIAGNOSTIC SERVICES INC., d//b/a Pan Am Diagnostic of Orlando, as assignee of Jean Alexandre, does have and recover from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, whose address is One State Farm Plaza, Bloomington, Illinois 61710, the sum of $866.98 ($2,150.00 @ 80% = $1,720.00, less prior payment of $853.02 = $866.98), plus applicable prejudgment and post judgment interest, for all of which let execution issue.
It is further,
ADJUDGED, that Plaintiff is entitled to reasonable attorneys’ fees and costs pursuant to Fla. Stat. §627.748 as the prevailing party, and this Court retains jurisdiction to determine the amount of costs and reasonable fees to which Plaintiff is entitled.
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1State Farm also paid $15.85 in interest as set forth in State Farm’s Explanation of Review.
2Pursuant to Fla. Stat. §627.736(5)(a), in determining a reasonable charge, “consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.”
3See Dep. of Dr. Foley, 25:5-25:12.
4Id. at 31:14-31:20.
5Id. at 31:21-31:25 and 32:1.
6Id. at 32:14-32:18.
7Id. at 32:5-32:13.
8Id. at 33:13-33:16.
9Dep. of Dr. Foley, at 33:21-33:25 and 34:1.
10Id. at 82:20-82:23.
11Id. at 26:13-26:17.
12 Id. at 27:9-27:14.
13Id. at 27:19-27:25 and 28:1.
14Id. at 29:1-29:3.
15Dep. of Dr. Foley, at 24:3-24:11.
16Id. at 60:2-60:10.
17Id. at 60:11-60:14.
18Id. at 61:24-61:25 and 62:1-62:11.
19Id. at 62:12-62:14.
20Id. at 41:14-41:19.
21Though not raised in its Amended Motion for Final Summary Judgment, Defendant raises, for the first time at hearing, that Dr. Foley was found to qualify as an expert as to the reasonableness of charges in Orange County, Florida in the case of State Farm Mut. Auto. Ins. Co. v. Pan Am Diagnostic Services, Inc., d/b/a Pan Am Diagnostic of Orlando a/a/o Jimmy Celestin, 25 Fla. L. Weekly Supp. 3a (Fla. Ninth Cir. Ct. 2017)(appellate capacity). This Court does not find that case persuasive in the instant matter as the Celestine matter involved a directed verdict at trial; did not have the benefit of the proof of amounts accepted by Pan Am Diagnostic by other automobile insurers; and did not have the benefit of Dr. Foley’s testimony as it was provided in this case showing that he does not have any experience, knowledge, skill or training as to coding, billing, pricing or the reasonableness of charges. Additionally, as Defendant did not cite that case in its Amended Motion for Final Summary Judgment, Defendant cannot argue and rely it support its motion at the hearing. See Rule 1.510 of the Florida Rules of Civil Procedure (“The motion must state with particularity the grounds on which it is based and the substantial matters of law to be argued and must specifically identify any affidavits, answers to interrogatories. admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies. The movant must serve the motion at least 20 days before the time fixed for the hearing. . .”).
22Dep. of Dr. Foley, at 46:1-46:8.
23Id. at 36:24-36:25 and 37:1-37:3.
24Id. at 59:16-29:19.
25Id. at 61:4-61:7.
26Id. at 61:8-61:13.
27See Dep. of Dr. Foley, at 65:2-65:5.
28Id. at 65:9-65:22.
29Id. at 65:23-65:25.
30Id. at 66:12-66:15.
31Id. at 67:10-67:20.
32Id. at 93:5-93:10.
33Of note, in his affidavit, Dr. Foley incorrectly states that Jean Alexandre is a female rather than a male. Additionally, in his deposition he changed the numbers in the affidavit as to what he determined as “reasonable” based upon the explanation of review. What Dr. Foley failed to understand was that the explanation of review had a higher number due to interest that was due and owing as the payment was past the 30 days set forth in Fla. Stat. Section 627.736. Specifically, Dr. Foley testified that he was changing paragraph 16 of his affidavit from $853.02 to reflect that State Farm made a payment of $868.87 because “if the numbers are to match, which I presume they are supposed to, it looks like it was a typo there.” See Dep. 95:8-95:18. He thereafter admitted that State Farm, rather than he, has the calculations. Id.
34Dep. of Dr. Foley, at 49:4-49:17; 53:1-53:22.
35Id. at 49:19-49:25; id. at 54:3-54:13; 56:4-56:6; 68:6-68:12; 71:19-71:21; 79:12-79:20.
36Id. at 56:1-56:2.
37Id.
38Not only did Dr. Foley refuse to look at what State Farm reimbursed for the same services in the same location in the same calendar year, but he also refused and/or could not recall the amounts charged by and/or paid to other providers in the community. Despite testifying as a radiology expert in 472 cases for the years 2012-2015, when asked about the specifics of those cases he testified, “You know, I don’t even remember anything about those cases.” See Dep. of Dr. Foley, at 57:11-57:21.
39Id.; see also id. at 79:21-80:23.
40See Dep. of Dr. Foley, at 50:3-50:18 (“I think it’s fair to then look at Medicare’s reimbursement level. . .”).
41Id. at 71:19-71:20.
42Dep. of Dr. Foley, at 80:18-81:18.
43Id. at 47:16-47:21.
