26 Fla. L. Weekly Supp. 705a
Online Reference: FLWSUPP 2609PAULInsurance — Personal injury protection — Coverage — Medical expenses — Affidavit in opposition to motion for summary judgment was sufficient to create genuine issue of material fact as to reasonableness of charges and medical necessity and reasonableness of reading x-ray nine days after it was taken — Discussion of summary judgment burden of proof
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. ROBERTO RIVERA-MORALES, M.D., a/a/o Claumene Paul, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2016-000161-AP-01. L.T. Case No. 2012-003547-SP-26. October 26, 2018. On Appeal from the County Court in and for Miami-Dade County, Gloria Gonzalez-Meyer, Judge. Counsel: Nancy W. Gregoire, and Viraj Mehta, for Appellant. William, D. Mueller, Martin I. Berger, and Elliot B. Kula, for Appellee.
(Before LOURDES SIMON, CHARLES K. JOHNSON, and ALBERTO MILIAN, JJ.)OPINION
(PER CURIAM.) REVERSED IN PART.
The case before us is an appeal from a summary judgment granted by the trial court on the issue of insurance benefits under a personal injury protection case concerning an analysis of evidence presented to the trial court under Florida Statute 627.736(5)(a)(1).
In May 2018, the Third District Court of Appeal, in Gidwani v. Roberts, 2018 WL 2122799 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D1024a], undertook an extensive review of the burden of proof required to grant summary judgment. “In evaluating whether summary judgment is appropriate, the trial court must determine whether the record evidence conclusively demonstrates that the moving party proved no genuine issues of material fact exist, i.e., “to ‘establish irrefutably that the nonmoving party cannot prevail were a trial to be held.’ ” Redland, 86 So.3d at 1261 (emphasis in original) (quoting Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC 75 So.3d 865, 868 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2764c]); accord Estoril, 104 So.3d at 388-389 [38 Fla. L. Weekly D87a]. If the slightest doubt exists as to a genuine issue of material fact, the summary judgment must be reversed. Alvarez-Mejia v. Bellissimo Props., LLC, 208 So.3d 797,799 (Fla. 3d DCA 2016) [42 Fla. L. Weekly D73a]; Daneri v. BCRE Brickell, LLC, 79 So.3d 91, 93-94 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D76a]).”
Both parties agreed at the oral argument that this case falls under the above-mentioned 5(a)(1) analysis. The version of section 5(a)(1) that was effective at the time of this accident (February 2011) provides, in relevant part, that:
“With 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).
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. Dr. Propper, in his affidavit, stated that he considered reimbursement levels in the community, various federal and state medical fee schedules and relied upon his experience from his extensive personal medical practice for over 35 years. According to his affidavit, Dr. Propper was board certified by the American Board of Orthopedic Surgery in 1986. He was Director of Compliance for a Healthcare Practice of 40 offices and was the Medical Director of Osteoarthritis Centers of America until late 2011. Based on the foregoing experience, Dr. Propper became familiar with the charges and reimbursements for x-rays in the South Florida area. He has also reviewed thousands of medical bills and explanations of benefits over the course of his career from multiple insurance companies, including GEICO, Progressive, United Automobile, Allstate, and State Farm. He is also conversant with Medicare and stated that it pays more than Blue Cross PPO, Blue Cross HMO, Medicaid, Travelers, Aetna, United Health Care, and Humana. Dr. Propper stated that what was billed was twice what any private insurer would have paid in the South Florida, and what was approved by State Farm was significantly higher than any insurer in South Florida would pay for the professional component of the x-rays billed for in this case. Based on the foregoing facts sets forth in Dr. Propper’s affidavit, this Court does not find this information to be conclusory. Criticism of the affidavit, under these circumstances, goes to the weight of the proffered testimony rather than its admissibility. If this information was provided to a jury, we cannot state irrefutably that State Farm cannot prevail.
Additionally, Dr. Propper has stated that the reading of the x-ray was not medically necessary or related to the auto accident. As support for this proposition, he stated that the standard of care in the medical community is to read an x-ray, (ostensibly to see if the spine is fractured), before referring one to physical therapy. His expert opinion was that reading the x-ray 9 days after it was taken does not comply with this standard of care. Again, we cannot state with certainty that this would have no effect on a jury. As such, we are compelled to reverse the trial court with regard to medical necessity and reasonableness. We note without further comment that in our view the trial court correctly accepted Dr. Wand’s and Dr. Rivera-Morales’ affidavits.
We AFFIRM summary judgment on relatedness; REVERSE on reasonableness and necessity.
