26 Fla. L. Weekly Supp. 454a

Online Reference: FLWSUPP 2606JSEPInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatement — Trial court erred in entering summary judgment in favor of medical provider on issue of relatedness and medical necessity of reading and interpretation of x-rays where opposing affidavit opining that x-rays that were not read before insured underwent extensive physical therapy were not utilized to diagnose injuries or determine course of treatment created genuine issue of material fact as to whether reading and interpreting x-rays was related and necessary — Reasonableness of charges — Provider may submit affidavit containing his opinion about reasonableness of own bills despite offering opinion as lay witness — Although reasonableness of charges is generally question for jury, where insurer presented no evidence in opposition to motion for summary judgment on reasonableness of charges, trial court did not err in entering summary judgment for provider on issue

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellant, v. ROBERTO RIVERA-MORALES, M.D. a/a/o JOSEPH, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-102 AP. L.T. Case No. 2012-2636 SP 26. July 17, 2018. On Appeal from the County Court in and for Miami-Dade County, Florida, Judge Lawrence D. King. Counsel: Nancy W. Gregoire, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, for Appellant. Martin I. Berger and Adam C. Loem, Berger & Hicks, P.A., Miami, for Appellee.

(Before: HIRSCH, DIAZ, and BLUMSTEIN, JJ.)

OPINION

(DIAZ, Judge.) The insured, Ms. Joseph, was involved in a motor vehicle accident on October 10, 2009. The insured was treated by Dr. Paul H. Wand (Dr. Wand) at A Plus Medical and Rehab Center, Inc. (A Plus). Dr. Wand prescribed an x-ray of the insured’s lumbar spine, which was taken by A Plus and then sent to Dr. Rivera-Morales for reading and interpretation. Rather than paying the full amount that Dr. Rivera-Morales charged, State Farm paid $106.91. Dr. Rivera-Morales sued.

Dr. Rivera-Morales moved for summary judgment, relying on Dr. Wand’s affidavit as support that prescribing, rendering, and interpreting the x-ray were medically necessary and related to the accident, and his own affidavit as support that the amounts that he charged were reasonable. In opposition to summary judgment, State Farm filed the affidavit of Dr. Propper, which included his opinion that the x-ray and interpretation were not medically necessary or related to the insured’s accident. The trial court found that Dr. Propper’s affidavit failed to create a genuine issue of material fact regarding the relation of the services to the automobile collision, but that it did create an issue of material fact with regard to medical necessity. It found that State Farm presented no evidence challenging the reasonableness of the charges. It therefore granted summary judgment in favor of Dr. Rivera-Morales as to reasonableness and relation.

Dr. Rivera-Morales filed a second motion for summary judgment on the remaining issue of medical necessity. He argued that State Farm could not dispute the necessity of diagnostic tests and that since State Farm did not challenge the necessity of taking the x-ray, it could not challenge the necessity of the interpretation of the x-ray. The trial court granted summary judgment on this remaining issue, and entered final judgment in favor of Dr. Rivera-Morales.

State Farm appeals, arguing that the trial court erred by granting summary judgment on the issues of relatedness and necessity of the treatment and the reasonableness of the charges, and by granting the final judgment.

The standard of review for an order granting summary judgment is de novo,¹ and the appellate court, like the trial court, must interpret the affidavits and the other evidence submitted in the light most favorable to the non-moving party:

[i]t is well established that “summary judgment should be granted only when there is a complete absence of genuine issues of material fact,” Copeland v. Fla. New Invs. Corp., 905 So. 2d 979, 980 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1622b] (citing Holl v. Talcott, 191 So. 2d 40 (Fla. 1966)), and the moving party is entitled to judgment as a matter of law. Carpineta v. Shields, 70 So. 2d 573, 574 (Fla. 1954) (citing Rule 56(c), Fed. R. Civ. P.). If the pleadings, discovery, depositions, and admissions “reveal[ ] the possibility of genuine issues of material fact, or even the slightest doubt, summary judgment should be denied.” Copeland, 905 So. 2d at 980 (citing Besco USA Int’l v. Home Sav. of Am. FSB, 675 So. 2d 687 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D1450b]). A trial court’s grant of summary judgment is reviewed under a de novo standard, Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D577a] (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]), and [the appellate] Court “must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party . . . and if the slightest doubt exists, the summary judgment must be reversed.” Id.

Rakusin Law Firm v. Estate of Dennis, 27 So. 3d 166, 166-67 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D296a] (emphasis added); see also State Farm Mut. Auto. Ins. Co. v. St. Jude Rehab. Ctr., 22 Fla. L. Weekly. Supp. 52c (Fla. 11th Cir. Ct. Aug. 6, 2014).

Case law provides that “ ‘generally the courts hold the moving party for summary judgment . . . to a strict standard and the papers supporting his position are closely scrutinized, while the papers opposing are leniently treated in determining whether the movant has satisfied the burden required of him.’ ” One West Bank, FSB v. Jasinski, 173 So. 3d 1009, 1014 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D1389a] (quoting Gonzalez v. Chase Home Fin. LLC, 37 So. 3d 955, 958 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1344a]). Furthermore, “a court may neither adjudge the credibility of the witnesses nor weigh the evidence” when ruling on a summary judgment motion. Hernandez, 730 So. 2d at 345. A court must not conflate the question of admissibility with the weight of the proffered testimony when determining if expert testimony is admissible. Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011) [23 Fla. L. Weekly Fed. C366a]; Taylor v. Novartis Pharmaceuticals Corp, 2013 WL 85168 (S.D. Fla. 2013) (“[A]s a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left or the jury’s consideration.”) (internal quotations and citations omitted); Univ. of Fla. Bd. of Trustees v. Stone, 92 So. 3d 264, 272 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1476a] (“Although the trial court has considerable discretion in determining whether an expert is qualified to render an opinion, the court should not exclude the expert’s opinion based on matters that go to the weight of the opinion because it is the exclusive province of the jury to weigh the evidence.”). The persuasiveness of the evidence should instead be attacked at trial through “traditional and appropriate means” such as “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Rosenfeld, 654 F.3d at 1193 (internal quotations and citations omitted).

Affidavits submitted in support of, or in opposition to, summary judgment must follow the requirements of Florida Rule of Civil Procedure 1.510(e), which provides:

[s]upporting and opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all documents or parts thereof referred to in an affidavit must be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

“[G]eneral statements in an affidavit which are framed in terms only of conclusions of law do not satisfy a movant’s burden of proving the nonexistence of a genuine material fact issue.” Heitmeyer v. Sasser, 664 So. 2d 358, 360 (Fla. 4th DCA 1995) [21 Fla. L. Weekly D39a] (citing Seinfeld v. Commercial Bank & Trust Co., 405 So. 2d 1039 (Fla. 3d DCA 1981)). However, the evidence offered “need not be in the exact form, or cover all the preliminaries, predicates, and details which would be required of a witness, particularly an expert witness, if he were on the stand at trial.” OneWest Bank, 173 So. 3d at 1013-14 (quoting Holl v. Talcott, 191 So. 2d 40, 45 (Fla. 1966)).

The evidence submitted in support of and in opposition to the motion for summary judgment below included the affidavits of Dr. Wand, who ordered the x-ray, Dr. Rivera-Morales, who read the x-ray, and Dr. Propper, State Farm’s expert witness who asserted that the x-ray was not medically necessary or related to the insured’s accident.

Dr. Rivera-Morales filed the affidavit of Dr. Wand on the issue of relatedness and medical necessity, while State Farm filed the affidavit of Dr. Propper on those issues. Each party asserts that the other’s affidavit is insufficient.²

Dr. Wand’s affidavit complies with the requirements of Rule 1.510(e), as it is based on facts personally known to Dr. Wand, it supports that he is competent to testify as to the matters stated in the affidavit, it sets forth relevant facts that would be admissible in evidence, and despite State Farm’s contention otherwise, the affidavit is not conclusory since reading the affidavit in the light most favorable to the non-moving party, it appears that he reached his conclusions regarding the medical necessity of the x-ray, and the relatedness of the need for treatment to the accident, after performing a physical exam of the insured and learning that she had pain in her lower back and other parts of her body.

However, Dr. Propper’s affidavit, submitted by State Farm, also complies with the requirements of Rule 1.510(e). Dr. Propper notes that the initial x-rays were taken by Dr. Wand on October 19, 2009, but were not interpreted by Dr. Rivera-Morales until October 31, 2009. He opines that it is not within the standard of care in the medical community to wait twelve days between performing the technical and professional component of the x-ray billed in this case. He explains that the results of x-rays can and should be utilized to determine a future course of treatment for a patient, and can be used to rule out bone fractures and other potential problems, but that this was not done in the instant case because the patient received extensive physical therapy (eight sessions) after the x-rays were taken but before they were read. Accordingly, he determined that the x-rays were not utilized to diagnose the patient’s injuries or determine the future course of her treatment, and as such they were not medically necessary or related to the automobile accident.

Dr. Rivera-Morales argues that Dr. Propper’s affidavit is deficient because State Farm, in this case, is only challenging the reading and interpretation of the x-rays, not Dr. Wand’s taking of the x-rays, and there is no evidence suggesting that once x-rays have been taken that they should not be read. However, Dr. Propper’s opinion relates to both the taking and the interpretation of the x-rays, asserting that taking an x-ray and interpreting it twelve days later, after treatment has already begun, serves no medical purpose. Dr. Rivera-Morales cites Banyas v. American Mutual Fire Insurance Co., 359 So. 2d 506 (Fla. 1st DCA 1978) and other cases indicating that diagnostic tests like x-rays are related and necessary medical services. However, Dr. Propper’s opinion does not conflict with these cases since he believes the x-rays were not used diagnostically since treatment was performed before the x-rays were read and interpreted. Dr. Propper’s affidavit was sufficient and created a genuine issue of material fact as to whether the reading and interpretation of the insured’s x-rays were related to her accident and medically necessary. As such, the trial court was incorrect in granting summary judgment as to the issues of relatedness and necessity.

Dr. Rivera-Morales submitted his own affidavit in support of his contention that his charges were reasonable. The affidavit meets the requirements of Rule 1.510(e). State Farm asserts that the affidavit fails because it does not address the statutory reasonableness factors. However, Florida Statute section 627.736(5)(a)(1) does not mandate that any of the particular factors that it lists must be used as evidence, and it allows for other relevant information about the reasonableness of the charges to be considered.³ Therefore, the fact that the factors relied on by Dr. Rivera-Morales may differ from those listed in the statute does not make those factors irrelevant. It is this Court’s view that the fact that his charges are his usual and customary charges and are within the range of what is usual and customary in Broward County, Florida are relevant facts that would be admissible into evidence. The deposition transcript of Dr. Rivera-Morales was also submitted below, and he testified in the deposition that he developed his charges when he first began his own practice in 1984 by checking prices that hospitals were charging at the time, by examining data in a clearinghouse book which confirmed that others were charging similar to what he was charging, and by adjusting his prices based on inflation rates. This information is also relevant and admissible.

State Farm also attacks Dr. Rivera-Morales’s affidavit because Dr. Rivera-Morales was not submitted as an expert on the reasonableness of the charges, but only as a lay witness. Generally, a lay witness may not present opinion testimony. See Sajiun v. Hernandez, 226 So. 3d 875, 879-80 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D1857a]; Fino v. Nodine, 646 So. 2d 746, 748-49 (Fla. 4th DCA 1994). However, there also appears to be an exception which allows medical provider lay witnesses to testify as to the reasonableness of his or her bills, and which allows a patient lay witness to testify that he or she paid medical bills which have been submitted into evidence:

Florida law, . . . for forty years has recognized the sufficiency of lay testimony to create a jury question on the issue of the reasonableness of medical bills. See, e.g., Garrett v. Morris Krischman & Co., 336 So. 2d 566, 571 (Fla. 1976) (finding that “[the plaintiff’s] testimony made it a question for the jury to decide, upon proper instructions, whether [his] medical bills represented reasonable and necessary medical expenses”); East West Karate Ass’n, Inc. v. Riquelme, 638 So. 2d 604, 605 (Fla. 4th DCA 1994) (same); Albertson’s, Inc. v. Brady, 475 So. 2d 986, 988 (Fla. 2d DCA 1985) (recognizing that “under certain conditions a plaintiff’s testimony may adequately establish the reasonableness and necessity of medical bills,” including where “a plaintiff’s detailed description of the treatment procedures clearly related the [treatment] to the [accident]”). As clearly articulated by Florida law, “[w]hen a plaintiff testifies as to the amount of his or her medical bills and introduces them into evidence, it becomes a question for the jury to decide, under proper instructions, whether [those] bills represent [ ] reasonable and necessary medical expenses.” Riquelme, 638 So. 2d at 605 (quoting Irwin v. Blake, 589 So. 2d 973 (Fla. 4th DCA 1992)); accord Garrett, 336 So. 2d at 571.

Lawton-Davis v. State Farm Mut. Auto. Ins. Co., 2016 WL 7238904, at *2 (M.D. Fla. Apr. 21, 2016) (alterations in original); see also Donovan v. State Farm Mut. Auto. Ins. Co., 560 So. 2d 330, 331 (Fla. 4th DCA 1990) (in a PIP case, in which the plaintiff’s doctors testified, applying the rule that expert testimony is not required to admit medical bills in evidence to a PIP case); State Farm Mut. Auto. Ins. Co. v. Multicare Med. Ctr., Inc., 12 Fla. L. Weekly Supp. 33a (Fla. 11th Cir. Oct. 5, 2004) (finding that generally, to establish a reasonable amount of compensation for an expert’s services, the expert who provides those services testifies as to the reasonableness of the charges and that no corroborating evidence from another expert is necessary). Accordingly, the fact that Dr. Rivera-Morales submitted his affidavit as a lay witness does not preclude him from providing his opinion about the reasonableness of his own bills.

To the extent that State Farm argues on appeal that the affidavit of Dr. Rivera-Morales relies on hearsay, its failure to object below on this ground is fatal to such an objection on appeal. See Jelic v. CitiMortgage, Inc., 150 So. 3d 1223, 1226 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D2410a].

This Court finds that the affidavit of Dr. Rivera-Morales was valid and sufficient to meet his summary judgment burden as to the reasonableness of his charges.

State Farm submitted no evidence concerning the reasonableness of the charges at issue, but asserts that reasonableness is always a question of fact for the jury, even in the absence of contradictory evidence. In other words, State Farm asserts that a court cannot determine on a motion for summary judgment that a charge was reasonable. State Farm’s argument has some merit, as it should be very rare for reasonableness of medical charges in a PIP action to be determined at the summary judgment stage. See Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 155-56 (Fla. 2013) [38 Fla. L. Weekly S517a] (holding that the determination of reasonableness under subsection (5)(a)1. of the PIP statute “is a fact-dependent inquiry determined by consideration of various factors.”); State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244, 1246 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D1757a] (providing that “the finder of fact must construe the word ‘reasonable’ and determine whether a PIP insurer’s evaluation of the bill for a particular medical service fits this definition on a case-by-case basis.”); State Farm Mut. Auto. Ins. Co. v. Florida Wellness & Rehab. Ctr., Inc. a/a/o Barrios, 22 Fla. L. Weekly Supp. 627a (Fla. 11th Cir. Ct. Apr. 25, 2017) (quoting State Farm Mut. Auto. Ins. Co. v. Sunset Chiropractic & Wellness, 24 Fla. L. Weekly Supp. 787a (Fla. 11th Cir. Ct. 2017)) (stating that “[t]rial courts should . . . exercise caution when granting summary judgment on the medical charges’ reasonableness because reasonableness ‘is generally a factual issue ripe for determination by a jury.’ ”). However, it is one thing to hold that reasonableness should generally be a question for a jury, but it is another to say that reasonableness can never be determined in a provider’s favor at summary judgment, even in a case such as this one when the provider submitted evidence that its charge was reasonable, and the insurer did not submit any evidence that it was not reasonable.

State Farm cites a number of cases, including Garrett, 336 So. 2d 566, Polaco v. Smith, 376 So. 2d 409, 409-10 (Fla. 1st DCA 1979); and A.J. v. State, 677 So. 2d 935, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e], which seem to contemplate that when a plaintiff meets its prima facie burden of submitting evidence of reasonableness, the issue will be determined by the jury. In addition, reasonableness seems to be the type of question that is inherently within the domain of the trier of fact to determine. On the other hand, none of the cases cited by State Farm, and none found performing additional research, explicitly state that the normal standard of summary judgment, which requires a “scintilla” of evidence on each side in order for summary judgment to be denied, does not apply when reasonableness is at issue. In September, another appellate panel of this Court rejected the argument that the reasonableness of a charge can never be decided at summary judgment. State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc., 25 Fla. L. Weekly Supp. 857a (Fla. 11th Cir. Ct. Sept. 28, 2017), cert. dismissed, Case No. 3D17-2311 (Fla. 3d DCA Dec. 20, 2017).⁴ Although a Circuit Court sitting in its appellate capacity is not bound by previous decisions of the same Court, it should consider those decisions when making its decision on an issue decided by a previous panel. See State v. Lopez, 633 So. 2d 1150, 1151 (Fla. 5th DCA 1994). For the sake of consistency, and because the previous panel’s decision is sound, we also determine that when one side presents absolutely no evidence as to reasonableness of charges, that factor can be determined at summary judgment.

Accordingly, final judgment entered below is hereby REVERSED. The order granting summary judgment in favor of Dr. Rivera-Morales on the issue of medical necessity is REVERSED. The order granting summary judgment in favor of Dr. Rivera-Morales as to reasonableness and relatedness is REVERSED as to relatedness.

Dr. Rivera-Morales’ motion for appellate attorney’s fees, pursuant to Florida Statutes section 627.428 and 627.736(8), is DENIED, as he is not the prevailing party on appeal. (HIRSCH and BLUMSTEIN, JJ., concur.)

__________________

¹The parties agree that the standard of review in this case is de novo.

²To the extent that Dr. Rivera-Morales implies that State Farm’s delay in challenging the necessity of the bills, or its payment of any amount toward the bills precludes it from challenging whether his services were medically necessary and related, we reject that argument as an appellate panel last year did:

H&W also argues that State Farm forfeited its right to contest the medical necessity of the treatment at issue because it made reduced payments on H&W’s charges. However, section 627.736(4)(b), which addresses “Payment of Benefits” under the PIP statute, clearly authorizes and enables an insurer to contest the reasonableness, relatedness, and medical necessity of claims, even after issuing reduced payments:

[P]ersonal injury protection insurance benefits paid pursuant to this section are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. However:

***

This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion may be made at any time, including after payment of the claim or after the 30-day period for payment set forth in this paragraph. § 627.736(4)(b)(6), Fla. Stat. (emphasis added); see also Coral Gables Chiropractic PLLC v. United Auto. Ins. Co., 199 So. 3d 292, 295 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D687a] (“Because section 627.736(4)(b)(6) allows an insurer to dispute the reasonableness of charges at any time, including after payment of the claim, the fact that UAIC issued payments in amounts $2,873.12 for PIP benefits does not dispose of the issue of the charges’ reasonableness.”) (emphasis added); Florida Medical & Injury Ctr., Inc. v. Progressive Exp. Ins. Co., 29 So. 3d 329, 340 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b] (holding that section 627.736(4)(b) is meant to allow insurers to challenge a claim as unrelated, not medically necessary, or unreasonable “at any lime, even after payment.”) (emphasis added).

Accordingly, the plain language of the PIP statute permits an insurer to challenge the necessity of a provider’s medical treatment at any point, including after payment of the claim. Therefore, H&W’s argument that State Farm somehow waived its ability to contest medical necessity is without merit, and State Farm was in no way estopped from disputing medical necessity via the Mathesie Affidavit.

State Farm Mut. Auto. Ins. Co. v. Health & Wellness Assocs., Inc. a/a/o Scott, 25 Fla. L. Weekly Supp. 860a (Fla. 11th Cir. Ct. May 24, 2017) [editor’s note: correct citation would seem to be 25 Fla. L. Weekly Supp. 220a]. This reasoning is sound, and applies equally well to an argument that a medical treatment was unrelated as it applies to an argument that it is unnecessary, as both are mentioned in section 627.736(4)(b). Accordingly, State Farm is not precluded from challenging the necessity and relatedness of Dr. Rivera-Morales’s treatment in the instant case.

³Since State Farm did not elect to use section 627.736(5)(a)(2) to calculate reasonableness in the instant case, the factors to be evaluated in calculating reasonableness are those listed in 627.736(5)(a)(1) which consists of various specific types of evidence that may be considered, as well as “other information relevant to the reasonableness of the reimbursement” for the service.

⁴The analysis of the reasonableness issue from that case is as follows:

State Farm argues that even in the absence of contradictory evidence, price reasonableness cannot be decided at summary judgment because it is a fact-based determination and thus must always be resolved by a jury. However, all but two of State Farm’s cited cases for this proposition involve appeals from a final judgment or jury verdict, rather than a summary judgment, and are therefore distinguishable. See, e.g., Garrett v. Morris Kirschman & Co., Inc., 336 So. 2d 566. 571 (Fla. 1976). Moreover, State Farm’s claim conflicts with the plain language of Florida Civil Procedure Rule 1.510(a), which permits “[a] party seeking to recover on a claim . . . [to] move for a summary judgment . . . on all or any part thereof.” “All or any” inherently includes reasonableness, and thus, it cannot be said that reasonableness can only be resolved by a jury. Nevertheless, the fact-specific nature of a reasonableness determination generally makes it a jury question. See State Farm Mut. Auto. Ins. Co. v. Sunset Chiropractic & Wellness, 24 Fla. L. Weekly Supp. 787a (Fla. 11th Cir. Ct. 2017) (stating that reasonableness “is generally a factual issue ripe for determination by a jury”).