26 Fla. L. Weekly Supp. 469a
Online Reference: FLWSUPP 2606ULLAInsurance — Personal injury protection — Coverage — Medical expenses — X-rays and interpretation of x-rays — Reasonableness of charges — Necessity — Although affidavits submitted by provider were legally sufficient to satisfy provider’s summary judgment burden as to reasonableness of charges and medical necessity of treatment, affidavits submitted by insurer were legally sufficient to create genuine issue of material fact as to these issues — Extensive discussion of experts’ affidavits
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellant, v. ROBERTO RIVERA-MORALES, M.D., a/a/o SYED ULLAH, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 15-143 AP. L.T. Case No. 2012-001730 SP 26. June 20, 2018. On Appeal from the County Court in and for Miami-Dade County, Florida, Judge Lawrence D. King. Counsel: Nancy W. Gregoire, for Appellant. Matthew D. Hellman and Zachary A. Hicks, for Appellee.
(Before: LOURDES SIMON, CHARLES K. JOHNSON, and OSCAR RODRIGUEZ-FONTS, JJ.)
(RODRIGUEZ-FONTS, J.) Syed Ullah was involved in an automobile collision on June 7, 2008, and was examined by Dr. Marc Rogoff, a licensed chiropractor, on June 13, 2008. Dr. Rogoff had x-rays taken of Mr. Ullah’s lumbar spine, and sent the x-rays to Roberto Rivera-Morales, M.D. (Dr. Rivera-Morales) for interpretation. Pursuant to an assignment of benefits, Dr. Rivera-Morales submitted his bills to State Farm Mutual Automobile Insurance Co. (State Farm), but State Farm paid less than the requested amount. Dr. Rivera-Morales filed suit against State Farm and eventually moved for summary judgment. The evidence submitted in support of summary judgment included an affidavit of Dr. Rivera-Morales and an affidavit of Dr. Rogoff. In opposition to summary Judgment, State Farm filed affidavits of Dr. Michael S. Propper and Darrell Spell. After conducting a hearing and reviewing the evidence submitted in support of and in opposition to summary judgment, the trial court granted summary judgment in favor of Dr. Rivera-Morales. State Farm appeals. The appeal depends upon the sufficiency of the affidavits submitted by the parties in support of, and in opposition to, the motion for summary judgment entered below.
Standard of Review/Summary Judgment Standard
On appeals of summary judgments, the appellate court must review the evidence de novo, and interpret the affidavits and the other evidence in the light most favorable to the non-moving party. Rakusin Law Firm v. Estate of Dennis, 27 So. 3d 166, 166-67 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D296a]; see also State Farm Mut. Auto. Ins. Co. v. A1A Mgmt. Servs., LLC d/b/a Roberto Rivera-Morales, M.D. a/a/o Muselair, 25 Fla. L. Weekly Supp. 860a (Fla. 11th Cir. Ct. Oct. 25, 2017); State Farm Mut. Auto. Ins. Co. v. St. Jude Rehab. Ctr., 22 Fla. L. Weekly Supp. 52c (Fla. 11th Cir. Ct. Aug. 6, 2014). In doing so, a court may not adjudge the credibility of the witnesses nor weigh the evidence, since on summary judgment the court is only to determine the admissibility of the evidence, not its persuasiveness. See Univ. of Fla. Bd. of Trustees v. Stone, 92 So. 3d 264, 272 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1476a]; Hernandez v. United Auto Ins. Co., 730 So. 2d 344, 345 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D646a]. In other words, at summary judgment, evidence, including expert witness affidavits, should be examined in order to determine whether issues exist, but the evidence should not be weighed and evaluated for a determination of the merits of the affidavits.
Therefore, instead of subjecting an expert witness’s summary judgment affidavit to the standard that the expert would be held to at trial, caselaw indicates that a more lenient standard applies at the summary judgment stage:
[W]e do not think it was ever intended that in a complicated case such as this one, the opponent of a motion for summary judgment be obligated to have his expert witness cover all the details and formalities that would be required in offering the same experts’ testimony at a trial of the cause. To do so would turn the summary judgment process itself into a trial of, rather than a search for, issues. This does not mean that the evidentiary matter submitted in opposition, including that offered in an affidavit, should not be of the kind which would be admissible in evidence at trial. The evidentiary matter offered must be both relevant and competent as to the issues in the cause. But it 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.
Holl v. Talcott, 191 So. 2d 40, 45 (Fla. 1966); see also Onewest Bank FSB v. Jasinski, 173 So. 3d 1009, 1013-14 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D1389a] (quoting this portion of Holl and applying the same reasoning to a non-expert witness).
The affidavits at issue in this case are subject to 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)).
State Farm asserts that the trial court erred in granting summary judgment because the Appellee’s affidavits were not sufficient to meet his summary judgment burden.
Dr. Rogoff’s Affidavit
State Farm asserts that Dr. Rogoff’s affidavit was legally insufficient to satisfy the burden of proving medical necessity.1 The affidavit states that it is based on facts personally known to Dr. Rogoff; that he is a chiropractic physician licensed to practice in the State of Florida; that on June 13, 2008 he performed an initial examination on the insured who reported being involved in an automobile collision on June 7, 2008; that at the time of the examination the insured complained of severe back pain; that based on the physical examination he ordered x-rays of the insured’s lumbar spine; that it is his opinion within a reasonable degree of chiropractic certainty that the lumbar x-ray and Dr. Rivera-Morales’ s reading and interpretation of the lumbar x-ray was reasonable, related, and medically necessary to further diagnose the insured’s injuries following his automobile collision.
The affidavit meets the first requirement of Rule 1.510(e), that it be made upon Dr. Rogoff’s personal knowledge. Dr. Rogoff, a chiropractic physician licensed to practice in Florida who performed a physical examination on the insured, is also competent to testify to the matters stated in the affidavit (the medical necessity of the x-ray reading and interpretation). The affidavit also sets forth facts that would be admissible in evidence, which are relevant and competent as to the issues in the cause, specifically, the issue of whether the x-ray and the reading and interpretation of it were medically necessary.
State Farm asserts that Dr. Rogoff’s affidavit is self-serving and conclusory and offers only the unsupported opinions of the affiant. Arguing that the affidavit is self-serving is an attack on its credibility and its weight, which is not a proper consideration on summary judgment. While State Farm is correct that the statements in the affidavit cannot be framed as mere conclusions of law, Heitmeyer, 664 So. 2d at 360, the affidavit need not include all of the details which would be required by Dr. Rogoff at trial. See Holl, 191 So. 2d at 45; OneWest Bank, 173 So. 3d at 1013-14. If Dr. Rogoff had only stated that the reading and interpretation of the x-rays were medically necessary, without any further information, that would have been a conclusory statement. However, Dr. Rogoff stated that he is a chiropractic physician licensed to practice in Florida, he performed a physical exam on the insured who stated that he had recently been in an accident and complained of severe back pain, that based on his physical examination he ordered the x-rays in question, and that in his opinion, within a reasonable degree of chiropractic certainty, the taking and reading and interpretation of the x-rays was medically necessary to further diagnose the insured. Since the affidavit indicates that Dr. Rogoff reached his conclusion that taking an x-ray and having it read and interpreted after performing an examination of the insured and learning that he had severe back pain, this Court determines that his affidavit was not conclusory.
In its Reply Brief, State Farm also asserts that the Rogoff Affidavit does not satisfy the Daubert test. However:
Case law advises that it is incumbent upon the party who wishes to challenge the sufficiency of an expert’s opinion to timely raise an objection and request a hearing before the trial court. Rojas v. Rodriguez, 185 So. 3d 710, 711 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D423a] (“it was incumbent upon the defendant, as the challenging party, to timely raise a Daubert objection and request a hearing before the trial court.”); see also Booker v. Sumter County Sheriff’s Office/North American Risk Servs., 166 So. 3d 189, 192 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1291c]. An objection to the validity of an expert’s opinion must sufficiently place an opposing party on notice of the alleged defects in its expert’s testimony so that it can have the opportunity to address those alleged defects. Id. at 193. . . . Timely and specific objections allow the court to perform its gatekeeping function and permit the expert’s proposed testimony to be evaluated with care, rather than allowing Daubert to act as a “gotcha” mechanism. Id. (citing Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2001)). Therefore, a Daubert challenge should not be addressed at a summary judgment hearing unless the party making the challenge filed a motion sufficiently setting forth the alleged defects in the expert’s opinion.
State Farm Mut. Auto. Ins. Co. v. A1A Mgmt. Servs., LLC d/b/a Roberto Rivera-Morales, M.D. a/a/o Muselair, 25 Fla. L. Weekly Supp. 860a (Fla. 11th Cir. Ct. Oct. 25, 2017). This conclusion is consistent with the summary judgment requirement that evidence, including affidavits, should be reviewed in the light most favorable to the non-moving party and that summary judgment should be denied if there is the slightest doubt that a genuine issue of material fact might exist. See Rakusin Law Firm, 27 So. 3d at 166-67. In fact, 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.’ ” OneWest Bank, 173 So. 3d at 1014 (quoting Gonzalez v. Chase Home Fin. LLC, 37 So. 3d 955, 958 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1344a]). A court cannot treat the non-moving party’s affidavit leniently and view it in a favorable light if it is holding the affidavit to the Daubert standard. Daubert‘s inapplicability to summary judgment affidavits is also consistent with the concept that a court must not adjudge credibility or weigh evidence at the summary judgment stage. See Hernandez, 730 So. 2d at 345; Univ. of Fla. Bd. of Trustees, 92 So. 3d at 272.
This Court concludes that, instead of routinely applying the requirements of Daubert to expert witness affidavits submitted in support of or opposition to summary judgment, such requirements should not be applied to an affidavit on summary judgment absent a motion to strike the affidavit as insufficient under Daubert, specifically describing the alleged defects in the expert’s opinion, in sufficient detail to provide the opposing party the opportunity to address those defects. In the instant case, no motion was ever filed challenging the opinion of Dr. Rogoff. As such, there was no opportunity for the Plaintiff below to address any alleged Daubert defects in Dr. Rogoff’s expert witness affidavit, and Daubert would not be properly considered on appeal.2
This Court finds that Dr. Rogoff’s affidavit was legally sufficient and satisfied the Appellee’s summary judgment burden on the issue of necessity.
Dr. Rivera-Morales’s Affidavit
State Farm argues that the affidavit submitted by Dr. Rivera-Morales did not satisfy his burden to prove that the amount that he charged for his medical services was reasonable. The affidavit states:
1. My name is Roberto Rivera-Morales, M.D. and I make this Affidavit based on facts personally known to me.
2. I am a medical doctor and board-certified radiologist licensed to practice medicine in the State of Florida and work at [editor’s note: address omitted].
3. I routinely receive x-ray and MRI films from medical, rehabilitative, and diagnostic centers, read and interpret those films, and dictate and have transcribed a report for the purpose of diagnosing injuries sustained in automobile collisions.
4. I am also responsible for the billing of all my services. I have extensive experience with respect to my billing practices and procedures, as well as knowledge of the charges billed.
5. I have reviewed the bill for [the insured], which is kept in the ordinary course and scope of business for all of my patients. I certify that the aforementioned bill attached to my affidavit is in fact a true and correct copies [sic] of those kept in the file.
6. I have reviewed the medical bill and all applicable CPT codes reflected on the HCFA form attached to this Affidavit. The charges for my services interpreting the x-rays of [the insured] are reasonable in that they are my usual and customary charges, and are also within the range of what is usual and customary in Broward County, Florida. This is based on my personal billing experience comparing my bills with those of other providers that I am familiar with in South Florida, as well as my many years of personal billing experience in this area. The amounts charged are also indicative of the amounts I have accepted from PIP insurers in the past.
The affidavit meets the first requirement of Rule 1.510(e); that it be made upon Dr. Rivera-Morales’s personal knowledge, as it states that it is made on facts personally known to Dr. Rivera-Morales. It is also suggested that he is competent to testify to the matters stated in the affidavit (the reasonableness of the bills) because he states that is responsible for the billing of all of his services, and has extensive experience doing so. State Farm asserts that Dr. Rivera-Morales’s statement in the affidavit that he has “extensive experience” with respect to his billing practices is conclusory. However, since he states that he routinely reads and interprets x-rays and MRIs and is responsible for the billing of all of his services, it follows that he is responsible for routinely billing as well. The affidavit also states that he has “many years of personal billing experience in this area.” Accordingly, Dr. Rivera-Morales’ statement that he has extensive experience with respect to his billing practices and procedures is not conclusory.
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. However, the law is clear that expert testimony is not required in order to enter evidence of reasonableness of bills into evidence. See Lawton-Davis v. State Farm Mut. Auto. Ins. Co., 2016 WL 7238904, at *2 (M.D. Fla. Apr. 21, 2016) (“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.”); Donovan v. State Farm Mut. Auto. Ins. Co., 560 So. 2d 330, 331 (Fla. 4th DCA 1990) (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); see also Garrett v. Morris Kirschman & Co., Inc., 336 So. 2d 566 (Fla. 1976). Nevertheless, State Farm argues that a lay witness cannot, rely on hearsay in forming an opinion, and Dr. Rivera-Morales refers to the bills of “other providers that [he is] familiar with in South Florida.” However, even without the comparison of his own bills to those by other radiologists in Broward County, the statement in the affidavit that the amounts charged are indicative of the amount that he has accepted from PIP providers in the past is sufficient to survive summary judgment, which should be granted “only when there is a complete absence of genuine issues of material fact.” Copeland, 905 So. 2d at 980 (emphasis added.)
The affidavit also sets forth facts that would be admissible in evidence. State Farm seems to suggest that the facts set forth in the affidavit would not be relevant (and therefore not admissible), by asserting that the affidavit fails to address the statutory reasonableness factors. Section 627.736(5)(a), Florida Statutes (2008)3 provides, in relevant part, that:
[w]ith respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, 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.
(Emphasis added). However, the statute does not mandate that any of the particular factors be used as evidence and allows for “other information relevant to the reasonableness of the reimbursement” for the service. The fact that his charges are indicative of amounts that he accepted from PIP insurers in the past is a relevant fact that would be admissible into evidence. (The fact that State Farm does not find it convincing goes to the weight rather than the admissibility of the evidence.)
Thus, Dr. Rivera-Morales’s affidavit was legally sufficient and satisfied his summary judgment burden as to the reasonableness of his charges.
Dr. Propper’s Affidavit
State Farm argues that the trial court erred in rejecting Dr. Propper’s affidavit. Dr. Propper’s affidavit was submitted to contest that the treatment provided by Dr. Rivera-Morales was medically necessary.4 The affidavit finds that because the insured’s lumbar spine had been x-rayed on June 8, 2018, it was not medically necessary for another x-ray to be ordered shortly thereafter.
Dr. Rivera-Morales argues that Dr. Propper’s affidavit is insufficient. One problem with the affidavit is that it states that Dr. Propper reviewed “handwritten medicals from Dr. Wand,” not Dr. Rogoff, the doctor who actually referred the x-ray to Dr. Rivera-Morales; and it states in one instance that he reviewed reports from “Kessler Sports Medicine,” not A Plus Medical, Doctor Rogoff s correct facility. The trial court also found that Dr. Propper incorrectly stated that the x-rays were ordered by Dr. Rivera-Morales, not Dr. Rogoff. Whether these errors destroy the evidentiary value of the affidavit depends upon whether they are mere scrivener’s errors or whether they indicate a fundamental flaw in Dr. Propper’s review of the records at issue (that he reviewed the wrong records). Other than naming the wrong doctors and wrong clinic, the affidavit seems to refer to the correct facts underlying this case. The proper records referring to the insured are attached to the affidavit. Reviewing the affidavit in the light most favorable to State Farm suggests that the inclusion of two incorrect names was simply a scrivener’s error, and should not be considered fatal to the validity of the affidavit.
Dr. Rivera-Morales and the trial court also both criticized Dr. Propper’s affidavit because he stated that he did not know what kind of doctor Dr. Rivera-Morales is. Dr. Rivera-Morales also argues against Dr. Propper’s criticism that a second x-ray was taken in close proximity to an initial x-ray. These are matters that go to the weight rather than the admissibility of the affidavit, and did not invalidate the affidavit. The trial court found that Dr. Propper’s opinion is “pure conclusion,” but Dr. Propper explains the reasoning behind his conclusion that ordering a second x-ray soon after an initial one is not medically necessary. His affidavit is not conclusory.
The trial court erred in rejecting Dr. Propper’s affidavit. The affidavit creates a genuine issue of material fact as to the necessity of the x-ray at issue in this case.
Darrell Spell’s Affidavit
State Farm also argues that the trial court erred in holding that the Darrell Spell Affidavit was legally incompetent to create a genuine issue of material fact on reasonableness of the amounts charged by Dr. Rivera-Morales.
One of the reasons that the trial court rejected Mr. Spell’s affidavit, and Dr. Rivera-Morales argues this Court should affirm such rejection, is that other courts across Florida have rejected other affidavits of Mr. Spell. However, none of these cases are binding on the instant Court, and this Court will make its own independent decision based upon the affidavits submitted in the instant case, not based on what other courts decided about other affidavits submitted in other cases.
Another reason that the trial court rejected Mr. Spell’s opinion as to reasonableness was that it found that “Mr. Spell is not competent to be an expert witness in this matter . . . because Mr. Spell’s opinions are not based upon sufficient facts or data.” As noted above, though, a determination of the sufficiency of an expert witness’s opinion should not be made unless notice of a challenge to the expert’s competence was made with sufficient detail to provide the opposing party the opportunity to address the alleged defects in the expert’s testimony. No motion was filed below challenging the competency of Mr. Spell as an expert or the competency of his opinion. As such, it was improper for the trial court to make this determination.
An additional basis for the trial court’s rejection of Mr. Spell’s opinion as to reasonableness was that his affidavit ignored data regarding what other radiologists and medical providers charge for the same services at issue in the case at bar, that he had no information regarding what the provider involved in the dispute has accepted as payment for his services, and that in reviewing reimbursement levels in the community he only considered data compiled by health insurance companies and Medicare, not reimbursements by PIP insurers and cash-paying patients. However, as noted in regard to Dr. Rivera-Morales’ s affidavit, section 627.736(5)(a) does not mandate that any of the particular factors be used as evidence and allows for “other information relevant to the reasonableness of the reimbursement” for the service. Regardless, Mr. Spell’s affidavit relies heavily on some of the section 627.736(5)(a) factors.
Although, as the trial court stated, Mr. Spell had no information regarding what the provider involved in the dispute charged for the same services at the case at bar, the affidavit stated that “[i]t is customary for a provider to bill the same amount for the same service regardless of the payor. I have been provided no information that this is not the practice of this provider.” Therefore, he assumed that the charge would be the same regardless of the payor. He also was not provided with the medical provider’s history of payments accepted, but stated that it has been his observation that prevailing reimbursement rates are consistently in the range of 80% to 140% of the Medicare fee schedule. He seems to indicate the reimbursement rates in Florida are higher, with the 25th percentile of allowed amounts being 120% of Medicare and the 90th percentile being 248.5% of Medicare. He determined that the billed amount in the instant case was 1448.3% of Medicare, which is well above the 90th percentile for amounts actually allowed.
As to reimbursement levels in the community, although the trial court rejected his analysis because Mr. Spell only considered data compiled by health insurance companies and Medicare, not reimbursements by PIP insurers and cash-paying patients, that is a factor that goes to weight rather than admissibility. Mr. Spell compared the dollar amount of the billed charge to reimbursement levels in the area around Weston, Florida. The billed amount in this case was $157.00, well above the 90th percentile of reimbursed charges in the area, which was $39.00 according to Mr. Spell’s data.
As to various federal and state medical fee schedules applicable to automobile and other insurance coverage, he compared the billed amount to the Medicare fee schedule,5 and as noted determined that the provider in this case billed 1448% of Medicare. He also compared the billed amount to the fee schedule used for reimbursing worker’s compensation medical claims, and determined that the billed amount was 1308% of the amount reimbursable under that schedule.
As to the “other information relevant to the reasonableness” factor, as the trial court stated, he rejected that other billed amounts in the area are relevant since actual reimbursement levels were already considered.
Thus, although Mr. Spell did not utilize every factor listed under section 627.736(5)(a)1., he relied on those which he considered relevant to his analysis, and since the statute provides that the factors “may” be considered, not that they “must” be considered, his decision not to utilize them all did not invalidate his affidavit.
Accordingly, the trial court was incorrect in finding Mr. Spell’s Affidavit insufficient. His affidavit created a genuine issue of material fact as to the reasonableness of the amount of the medical charges at issue.
Conclusion
The affidavits by Dr. Rogoff and Dr. Rivera-Morales, submitted by Dr. Rivera-Morales, were each legally sufficient and satisfied Dr. Rivera-Morales’s summary judgment burden as to reasonableness and necessity. However, Dr. Propper’s affidavit and Mr. Spell’s affidavit were legally sufficient and, interpreted in a light most favorable to State Farm, created a genuine issue of material fact as to reasonableness and necessity. As such, the trial court erred in granting Dr. Rivera-Morales’s motion for summary judgment.
Accordingly, this case is REVERSED and REMANDED for proceedings consistent with this opinion. (JOHNSON, J., concurs, and SIMON, J., concurs in part and dissents in part.)
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1Dr. Rivera-Morales asserts that State Farm conceded that the x-ray at issue was medically necessary by pleading in its answer and affirmative defenses that it “properly issued payment.” However, State Farm’s answer and affirmative defenses also denied that the treatment at issue was medically necessary. We do not find that State Farm waived its ability to challenge necessity by stating in its answer that it properly issued payment pursuant to the PIP statute. See 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: citation appears to reference 25 Fla. L. Weekly Supp. 220a.] (“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.”).
2As noted in the Muselaire case, the continued applicability of the Daubert standard appears to be in question since the Florida Supreme Court issued In re: Amendments to the Florida Evidence Code, 42 Fla. L. Weekly S179a (Fla. Feb. 16, 2017). See 25 Fla. L. Weekly Supp. 860a. In the Florida Supreme Court’s opinion, the Court declined to adopt the Daubert standard to the extent that it is procedural, due to constitutional concerns that had been raised, but declined to rule upon the merits of those constitutional concerns until a proper case or controversy presents itself. Another case, Richard Delisle v. Crane Co., et al (SC16-2182) [43 Fla. L. Weekly S459a] is currently pending before the Florida Supreme Court, which may resolve the issue. The Court has not yet issued and opinion on the case, but oral arguments were heard on March 6, 2018. However, regardless the standard that applies to the admissibility of expert witness opinion testimony (whether Daubert or Frye), a challenge to the sufficiency of an expert witness’s opinion must be made with sufficient detail and notice to provide the opposing party the opportunity to address the alleged defects in the expert’s testimony.
3The accident and treatment in the instant case both occurred in June of 2008.
4Dr. Rivera-Morales asserts that State Farm conceded that the x-ray at issue was medically necessary by pleading in its answer and affirmative defenses that it “properly issued payment.” However, State Farm’s answer and affirmative defenses also denied that the treatment at issue was medically necessary. We do not find that State Farm waived its ability to challenge necessity by stating in its answer that it properly issued payment pursuant to the PIP statute. See 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: citation appears to reference 25 Fla. L. Weekly Supp. 220a.] (“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.”).
5The trial court also found Mr. Spell’s reliance on Medicare fee schedules to be a reason to reject his affidavit. However, several recent opinions from other Eleventh Judicial Circuit Court Appellate Panels have determined that Medicare fee schedules are properly considered in determining reasonableness under 627.736(5)(a)1. See State Farm Fire and Casualty Ins. Co. v. Rivera-Morales, Case No. 15-341 AP (Fla. 11th Jud. Cir. May 11, 2018); State Farm Mut. Auto. Ins. Co. v. A1A Mgmt. Servs., LLC d/b/a Roberto Rivera-Morales, M.D. a/a/o Muselair, 25 Fla. L. Weekly Supp. 860a (Fla. 11th Cir. Ct. Oct. 25, 2017); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc., 25 Fla. L. Weekly Supp. 857a (Fla. 11th Cir. Ct. Sept. 28, 2017); State Farm Mut. Auto. Ins. Co. v. Health & Wellness Assocs., Inc., (Fla. 11th Cir. Ct. May 24, 2017) [25 Fla. L. Weekly Supp. 220a]. We agree with those opinions that Medicare fee schedules may properly be utilized in a section 627.736(5)(a)1. reasonableness determination.
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(SIMON, J., dissenting.) I respectfully disagree with the majority’s finding that Darrell Spell’s affidavit is legally sufficient to create a genuine issue of material fact as to the reasonableness of the amount reimbursed by the State Farm.
In formulating his opinion, Mr. Spell relied primarily on the Medicare Part B Fee Schedule and his knowledge of what government and private insurers pay for services rendered by medical providers. Mr. Spell did not rely on other factors set forth in section 627.736(5)(a)(1), Fla. Stat. (2008). He stated he was not provided with Dr. Rivera-Morales usual and customary changes or history of payments accepted. Furthermore, Mr. Spell did not have information on payments accepted by Dr. Rivera-Morales. He merely assumed the amount of Dr. Rivera-Morales’ usual and customary charges and the amount of payments he accepts. Lastly, Mr. Spell did not take into consideration billed amounts in the relevant geographic area. His analysis was based merely on data compiled by health insurance companies and Medicare, not reimbursement by PIP insurers and cash-paying payments. All these factors are relevant to the “reimbursement levels in the community.”
Accordingly, in my opinion, the trial court correctly found that Mr. Spell’s affidavit was insufficient to create a genuine issue of material fact on the reasonableness of the medical charges. The lower court’s decision to grant summary judgment on this issue should therefore be affirmed because Dr. Rivera-Morales’ affidavit was unrebutted.
