26 Fla. L. Weekly Supp. 51a
Online Reference: FLWSUPP 2601SILVInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — Provider entitled to summary judgment on issue of relatedness of treatment to accident at issue and on medical necessity and reasonableness of MRIs of left elbow and lumbar spine
PREMIER DIAGNOSTICS CENTER, LLC, a/a/o Racquel Silvera, Plaintiff, v. MGA INSURANCE COMPANY, INC., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-017021 COCE 54. March 6, 2018. Florence Taylor Barner, Judge. Counsel: Ross Abramowitz, Galsterer Abramowitz, P.A., Fort Lauderdale, for Plaintiff. Paul Canella, Bronstein and Carmona, Fort Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL JUDGMENT AS TO NECESSITY,REASONABLENESS AND RELATEDNESS
THIS CAUSE came before the Court on February 19, 2018 on Plaintiff’s Motion for Final Summary Judgment as to Necessity, Reasonableness and Relatedness. The issue raised by the Plaintiff’s Motion is whether the treatment rendered to Racquel Silvera was related to the automobile accident that occurred on November 20, 2014, was medically reasonable and necessary.
The Court having reviewed Plaintiff’s Motion for Final Summary Judgment with supporting evidence, Defendant’s expert affidavit in opposition, the entire Court file, the relevant legal authorities, and having heard argument from counsel and being otherwise sufficiently advised in the premises, hereby enters this Order GRANTING Plaintiff’s Motion for Final Summary and makes the following factual findings and conclusions of law.
I. Background and Findings of Fact
Racquel Silvera was involved in an automobile accident on November 20, 2014 and treated with South Florida Pain and Rehabilitation of West Broward, Inc. from December 3, 2014 through April 2, 2015 in relation to injuries sustained in said accident. Dr. Kimberly Prince, D.C., as the treating and supervising chiropractor of South Florida Pain and Rehabilitation of West Broward, Inc., prescribed an MRI of left elbow and an MRI of the lumbar spine for Racquel Silvera.
On January 25, 2015, the Plaintiff, Premier Diagnostics Center, LLC, performed an MRI of the lumbar spine and an MRI of the left elbow on Racquel Silvera in relation to injuries sustained in the November 20, 2014 accident.
Plaintiff, as assignee of a policy of insurance issued by Defendant, submitted its bills in the amount of $3,700 for treatment rendered of Racquel Silvera to Defendant for payment of Personal Injury Protection (“PIP”) benefits.
On August 4, 2016, Plaintiff, as the assignee of Racquel Silvera, filed suit for PIP benefits alleging breach of contract by Defendant.
On June 23, 2017, Plaintiff filed all affidavit from Dr. Kimberly Prince, D.C., with respect to the issue of relatedness, reasonableness and medical necessity of the treatment rendered to Racquel Silvera by Plaintiff. In her affidavit, Dr. Prince testifies that the diagnostic testing prescribed to Racquel Silvera was medically necessary and causally related to the injuries sustained by Racquel Silvera in an automobile accident that occurred on November 20, 2014.
Dr. Prince’s affidavit details the reported complaints of Ms. Silvera following her automobile accident of November 20, 2014, her diagnosis, and the treatment plan consisting of electrical muscle stimulation, ultrasound, hot moist packs, cold packs, therapeutic stretching activities, and manual therapies. She opines that as a result of the findings during her initial examination, as well as the patient’s subjective and objective complaints, MRIs of the Lumbar Spine and Left Elbow were prescribed for the purpose of further preventing, diagnosing, and treating Racquel Silvera’s injuries. Dr. Prince further testified that based upon her experience and training, it is [her] chiropractic opinion, with reasonable degree of probability, that all of the. . . prescribed diagnostic testing were medically necessary, in that all of the. . .prescribed diagnostic testing were provided for the purposes of preventing, diagnosing, an treating Racquel Silvera’s injuries.
On June 23, 2017, Plaintiff filed its Motion for Final Summary Judgment as to Necessity, Reasonableness and Relatedness of its treatment relying on affidavit testimony from Dr. Prince.
On February, 9, 2018, Defendant served its Affidavit of Evan Rosen, D.C. in Opposition to Plaintiff’s Motion for Summary Judgment. As more fully discussed below, Dr. Rosen opines that MRI scans of the lumber spine and left elbow were not reasonable or medically necessary.
The parties stipulated that for the instant matter only, Plaintiff is not contesting the Defendant’s incorporation of the Medicare Fee Schedule. Reasonableness of the charges is therefore not at issue.
The issues remaining for the Court’s determination were the Relatedness, Reasonableness and Medical Necessity of the treatment. Plaintiff, as movant, has the initial burden of tendering sufficient evidence to demonstrate the nonexistence of genuine issue of material fact. If Plaintiff meets its prima facie burden, Defendant, as the opposing party, ‘must come forward with counterevidence sufficient to reveal a genuine issue”. Landers v. Milton, 370 So. 2d 368 (Fla. 1979). A trial court cannot consider inadmissible evidence in determining the disposition of a motion for summary judgment.” Rose v. ADT Sec, Servs., 989 So. 2d 1244 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D2162b].
II. Relatedness of Treatment
Florida Rule of Civil Procedure 1.510(c) provides that “judgment sough must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
The record evidence before this Court is undisputed as to the occurrence of an accident on November 20, 2014 and that the treatment rendered by the Plaintiff was in relation to said accident. Specifically, paragraph 16 of Dr. Prince’s affidavit states “that Racquel Silvera’s Injuries are. . . within a reasonable chiropractic probability, are causally related to the November 20, 2014 motor vehicle accident.” The Plaintiff has met its prima facie burden establishing the services rendered by the Plaintiff were causally related to the automobile accident on November 20, 2014. In opposition, the affidavit of Dr. Rosen fails to mention a single word regarding the relatedness of the treatment rendered by the Plaintiff.
Accordingly, Plaintiffs Motion is GRANTED as to the issue of relatedness of treatment provided.
III. Medical Necessity and Reasonableness of the MRI of the Left Elbow
In support of its Motion for Final Summary Judgment, the Plaintiff relied on the sworn affidavit of Dr. Kimberly Prince, D.C., in which she testified under oath to what she did as far as treating Racquel Silvera; that the treatment rendered to Racquel Silvera was reasonable, medically necessary, and related to the automobile accident of November 20, 2014; and that MRIs of the lumbar spine and left elbow were prescribed for the purpose of further preventing, diagnosing, and treating Racquel Silvera’s injuries. Furthermore, the Plaintiff relies on Banyas v. American Mut. Fire Ins. Co., 359 So.2d 506 (Fla. 1st DCA 1978) for the proposition that diagnostic tests are presumptively compensable absent competent evidence that demonstrate otherwise.
The Court finds that the affidavit filed in support of Plaintiff’s Motion for Final Summary Judgment is legally sufficient to meet its prima facie burden of proof thereby shifting the burden to Defendant to demonstrate the existence of a genuine issue of material fact.
In opposition to Plaintiff’s Motion for Final Summary Judgment, the Defendant relied on the sworn affidavit of Dr. Evan Rosen, D.C. Dr. Rosen conducted an independent medical examination of Racquel Silvera as well as a peer review of various records regarding Racquel Silvera. This Court takes notice that, although Dr. Rosen examined Racquel Silvera during the independent medical examination, Dr. Rosen did not examine Racquel Silvera’s left elbow during that examination. In fact, Dr. Rosen’s first mention of Racquel Silvera’s left elbow came one thousand one-hundred and seventy-three (1,173) days after the accident in Dr. Rosen’s peer review.
The only mention of the left elbow in Dr. Rosen’s affidavit is found in paragraph 16 and 17. In regards to the left elbow, the Court finds that paragraphs 16 and 17 or Dr. Rosen’s affidavit are self-serving, conclusory and insufficient to create a genuine issue of material fact. Additionally, Dr. Rosen’s affidavit is insufficient because it does nothing more than copy and paste from Dr. Rosen’s inadmissible peer review report and failed to dispute the “rule out” doctrine established by Banyas.1
Accordingly, Plaintiff’s Motion is GRANTED as to the issue of Medical Necessity and Reasonableness of the left elbow MRI.
IV. Medical Necessity and Reasonableness of the MRI of the Lumbar Spine
In support of its Motion for Summary Judgment on the issue of the medical necessity and reasonableness of the MRI of the lumbar spine, the Plaintiff again relies on the affidavit of Dr. Kimberly Prince, D.C. Furthermore, the Plaintiff, again, relies on Banyas for the proposition that diagnostic tests are presumptively compensable absent competent evidence that demonstrate otherwise.
For the reasons stated above, the Court, again, finds that the affidavit filed in support of Plaintiff’s Motion for Final Summary Judgment is legally sufficient to meet its prima facie burden of proof thereby shifting the burden to Defendant to demonstrate the existence of a genuine issue of material fact.
In opposition to Plaintiff’s Motion for Final Summary Judgment, the Defendant, relies on the sworn affidavit of Dr. Evan Rosen, D.C. Much of Dr. Rosen’s opinions regarding the medical necessity of the MRI of the lumbar spine are based on the notion of insufficient record keeping on the part of Dr. Prince, which this Court does not recognize as a lawful basis for nonpayment of PIP benefits. (i.e. “no evidence of any quantitative improvement”). Additionally, Dr. Rosen’s affidavit is replete with conclusory statements that fail to raise a genuine issue of material fact.
Accordingly, Plaintiff’s Motion is GRANTED as to the issue of Medical Necessity and Reasonableness of the lumbar spine MRI.
Therefore, it is hereby ORDERED AND ADJUDGED that Plaintiffs Motion for Final Summary Judgment is GRANTED.
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1See Martinez Chiropractic Center, Inc, a/a/o Camilo Mejia v. United Automobile Insurance Company, 21 Fla. L. Weekly Supp. 820a (Broward Cty. Ct. April 22, 2014)
