26 Fla. L. Weekly Supp. 704a
Online Reference: FLWSUPP 2609SAMBInsurance — Personal injury protection — Coverage — Medical expenses — Relatedness and necessity of services — Trial court erred in entering summary judgment in favor of medical provider on issues of relatedness and necessity of reading and interpreting x-rays of insured where opposing affidavit and deposition filed by insurer raised genuine issue of fact regarding relatedness and necessity of reading x-rays over one month after they were prescribed — Reasonableness of charges — Trial court erred in entering summary judgment in favor of provider on issue of reasonableness of charges where opposing affidavit filed by insurer raised issues of material fact
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. ROBERTO RIVERA-MORALES, M.D. a/a/o Eugenia Sambolin, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 15-444 AP. L.T. Case No. 12 2641 SP (26). August 21, 2018. An appeal from the County Court in and for Miami-Dade County, Lawrence King, Judge. Counsel: Nancy W. Gregoire, Birnbaum Lippman & Gregoire, PLLC., for Appellant. Adam C. Loeb, and Martin I. Berger, Berger & Hicks, P.A., for Appellee.
(Before: LOPEZ, ARECES, and DE LA O, JJ.)
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“Appellant”) appeals an Order Granting Final Judgment (“Final Judgment”) in favor to Roberto Rivera-Morales, M.D. a/a/o Eugenia Sambolin (“Appellee”). Having carefully reviewed the briefs, the record, and the applicable law, we REVERSE and REMAND the case for further proceedings.
Eugenia Sambolin (“Insured/Sambolin”) was involved in a motor vehicle accident and was injured. Sambolin received treatment from Paul Wand, M.D. (“Wand”), who prescribed several x-rays and therapy on a regular basis. Appellee, a radiologist, read and interpreted Sambolin’s x-rays. Upon receipt of Appellee’s claim, Appellant paid it at the rate set in the Medicare Part B physician’s fee schedule. Appellee sued for the unpaid balance, arguing that Sambolin’s treatment was related and necessary and that the charges associated with reading and interpretation of the x-rays were reasonable; the county court agreed, granted summary judgment, and entered Final Judgment in favor of Appellee.
Appellant contends that the county court erred by entering Final Judgment when it granted Appellee’s summary judgment on the issues of relatedness and medical necessity, and the reasonableness of Appellee’s medical services, where legally sufficient supporting and opposing affidavits created genuine issues of material fact. We agree.
The standard of review when reviewing a trial court’s entry of a final summary judgment is de novo. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]; Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a].
A party moving for summary judgment bears the burden to show the nonexistence of any genuine issue of material fact. and once competent evidence is tendered, the opposing party must come forward with counter competent evidence to reveal a genuine issue of material fact. Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979). Florida Rule of Civil Procedure 1.510(e) requires that affidavits submitted in summary judgment proceedings 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 . . . .”
Therefore, summary judgment should not be rendered . . . unless the facts are so crystalized that nothing remains but questions of law; therefore, where the record demonstrated the possibility of a disputed fact, summary judgment is improper. See Rustowicz v. N. Broward Hosp., 174 So. 3d 414, 419 (Fla 4th DCA 2015) [40 Fla. L. Weekly D1524a].
Relatedness and medical necessity
Generally, a plaintiff may recover the cost of medical expenses for diagnostic testing which were reasonably necessary to determine whether the accident caused the injuries. See Pack v. Geico Gen. Ins. Co., 119 So. 3d 1284, 1286 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D1873b] (citing Sparks-Book v. Sports Auth. Inc., 699 So. 2d 767, 768 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D2069c]); see also Allstate Prop. & Cas. Ins. Co. v. Flores, 46 So. 3d 94 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2151a].
Appellant’s argument against the relatedness and medical necessity of Appellee’s services lies with the delay between the x-ray exams and the reading and interpretation of same.
Appellee’s claim of necessity and relatedness of his services rested in Wand’s affidavit, which included Sambolin’s initial consultation. Wand noted Sambolin’s complaint of neck, middle, and lower back pain, ordered routine x-rays of her cervical, thoracic, and lumbar spine to rule out a fracture, displacement, or lesion, and prescribed therapy on a regular basis. Wand opined that Sambolin’s x-rays and the reading and interpretation of the x-rays were reasonable, medically necessary, and related to the vehicle accident, but failed to provide an explanation for the month long delay.
In opposition to summary judgment, Appellant argued that Appellee had failed to show that the services rendered were medically necessary and related to the automobile accident. Appellant relied on the affidavit of Michael S. Propper, M.D. (“Propper”), and Wand’s deposition testimony.
Propper, an orthopedic surgeon currently licensed in the State of Florida, provided the affidavit based on his training, education, and experience as an orthopedic surgeon and a forensic expert. Propper attests that he reviewed Sambolin’s record and concluded that Wand’s examination was normal. Propper opined that Appellee’s x-ray reads were not medically necessary or related to the accident.
In addition, Propper indicated that according to the American College of Radiology the 2011 updated criteria for relatedness provided for six weeks to obtain x-rays absent warning signs such as fever, intravenous steroid use, AIDS, osteopenia, osteoporosis, age 70 or greater, severe trauma documented in an emergency room, or history of cancer. Propper concluded that Appellee’s read and interpretation of Sambolin’s x-rays over one month after Wand prescribed them did not fall within the generally accepted standards of medical practice. Propper averred that the standard of care provides for diagnostic x-rays before therapy commences; and not through ongoing therapy, as in this case.
Furthermore, Wand’s deposition testimony acknowledges that a timely read and interpretation of x-rays is valuable to any subsequent medical treatment. Wand testified that he had no knowledge on what the standard of care is concerning the definition of medical necessity, but opined that the reading should be done “pretty quickly” and that the x-ray report was “essential to [Sambolin’s] treatment.” (Emphasis added).
Contrary to the Order Granting Final Judgement in favor or Appellee, we find that the supporting and opposing summary judgment evidence created a genuine issue of material fact that precludes entry of summary judgment in this matter.
As such, we REVERSE and REMAND the county court’s entry of Final Judgment as to the issue of relatedness and medical necessity.
Reasonable charges
Generally, in a personal injury protection case, a provider’s medical bills present prima facie evidence of the reasonableness of its charges. See A.J. v. State, 677 So. 3d 935, 937 (Fla 4th DCA 1996) [21 Fla. L. Weekly D1677e].
On summary judgment, Appellee argued that his charges were reasonable and relied on raw data compiled by Appellant and its vendor using GEOZIP reports for a particular CPT code in a given area. Appellee analyzed the raw data, compared it to his own charges, and concluded that his charges were within the range of usual and customary charges for similar providers in the community.
Appellant opposed summary judgment and introduced the affidavit of by Dr. Edward Dauer (“Dauer”), a Board Certified Radiologist, licensed in the State of Florida since 1976. Dauer attested to his personal experience and/or knowledge without consideration of any records in support. Dauer discussed his own personal pricing strategy and history, and supported his affidavit by claiming that he has treated numerous patients injured in automobile accidents, has evaluated medical records and bills, and has owned and operated several diagnostic centers.
Appellant also relied on various deposition testimonies where Appellee was a party to the action.1 Those testimonies indicate that Appellee was unable to describe how and why his charges are reasonable and how he failed to provide supporting data or methodologies, as evidenced by Appellee’s assertion that his own charges for similar CPT codes are reasonable and that his prices start as low as $5.00 per case.
While Appellee’s medical bills present prima facie evidence of the reasonableness of its charges, we find that Appellant has provided a legally sufficient opposing affidavit that precludes entry of summary judgment since there remain genuine issues of material fact.
Accordingly, the Final Judgment entered in favor of Appellee is hereby REVERSED and REMANDED for proceedings consistent with this opinion. We DENY Appellee’s Motion for Attorney’s fees and costs, and GRANT Appellant’s Motion for Attorney’s fees and costs, subject to the tenets of section 768.79, Florida Statutes, the offer of judgment statute.
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1Deposition transcript of Dr. Roberto Rivera-Morales dated June 11, 2013 in the case of Roberto Rivera-Morales, M.D. (a/a/o Kimberly Parker) v. State Farm Mut. Auto. Ins. Co. (“Parker”), Miami Dade County Case No. 12-03395 SP 26 (4); Deposition transcript of Dr. Roberto Rivera-Morales dated October 14, 2014 in the case of Roberto Rivera-Morales, M.D. (a/a/o Jean Marie Charles) v. State Farm Fire & Cas. Co. (“Charles”), Miami Dade County Case No. 12-2166 SP 26 (4); and deposition transcript of Dr. Roberto Rivera-Morales dated June 11, 2013 in the case of Roberto Rivera-Morales, M.D. (a/a/o Yves Jacquet) v. Progressive Am. Ins. Co. (“Jacquet), Miami Dade County Case No. 07-029985 SP 26 (02).
