26 Fla. L. Weekly Supp. 553a
Online Reference: FLWSUPP 2607SANTInsurance — Personal injury protection — Coverage — Medical expenses — Diagnostic testing — Trial court erred by entering summary judgment in favor of provider who filed suit after insurer paid invoice at reduced rate set in Medicare Part B fee schedule where affidavit submitted by insurer raised genuine issue of material fact as to whether x-rays which were subject of claim were medically necessary and whether payment was reasonable
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. ROBERTO RIVERA-MORALES, MD a/a/o Jaime Santofimio, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2015-368 AP. L.T. Case No. 2012-4043 SP (26). August 22, 2018. An appeal from the County Court in and for Miami-Dade County. Gloria Gonzalez-Meyer, Judge. Counsel: Nancy W. Gregoire, Birnbaum Lippman & Gregoire, PLLC., for Appellant. Martin I. Berger and Zachary Hicks, Berger & Hicks, P.A., and Elliot B. Kula and William D.Mueller, Kula and Associates, P.A., for Appellee.
(Before CYNAMON, TRAWICK, and DE LA O, JJ.)
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“Appellant”) appeals an Order Granting Final Judgment (“Final Judgment”) in favor of Roberto Rivera-Morales, M.D. a/a/o Jaime Santofimio (“Appellee”), because of the existence of genuine issues of material fact. Based on our review of the briefs filed by the parties, the record on appeal, relevant statutes and precedent, and argument of Counsel, we agree and, therefore, REVERSE and REMAND the case for further proceedings.
Jaime Santofimio (“Insured/Santofimio”) was involved in a motor vehicle accident and allegedly injured. Santofimio subsequently treated with Paul Wand, M.D. (“Dr. Wand”). Appellee is the radiologist who read Santofimio’s x-rays as prescribed by Dr. Wand.
Appellant did not pay Appellee’s invoice as presented, but rather at the rate set in the Medicare Part B fee schedule. Unsatisfied with the payment tendered, Appellee sued Appellant for the remaining balance. Appellee asserted that the insured’s treatment was related and necessary and that the charges associated with reading and interpreting the x-rays were reasonable. Appellee moved for summary judgment. After hearing argument, the County Court agreed and granted summary judgment, and entered Final Judgment in favor of Appellee. Appellant asserts the County Court erred.
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]. “If the record on appeal reveals the merest possibility of genuine issues of material fact, or even the slightest doubt in this respect, the summary judgment must be reversed.” Sanchez v. Miami-Dade County, 245 So. 3d 933, 944 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D891a](quoting Piedra v. City of North Bay Village, 193 So. 3d 48, 51 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D1087a]).
Appellee may recover the cost of medical expenses for diagnostic testing which were reasonable, related, and necessary. 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].
However, Appellant presented the affidavit of Michael S. Propper, M.D. (“Propper”) to the trial court. The affidavit claimed both that the x-rays were not medically necessary and that the payment by Appellant was reasonable. Dr. 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, and after reviewing Santofimio’s medical records.
There is no basis to conclude that Propper’s affidavit was factually insufficient to oppose the motion for summary judgment. Specifically, Dr. Propper attested that he did not feel the services ordered were medically necessary. Moreover, while the reimbursement in question is based on a Medicare Part B reimbursement rate, State Farm provided notice that it may consider various fee schedules in determining the reimbursement allowed by Section 627.736(5), Florida Statutes (2010), which allow it to consider reimbursement based on a percentage of the Medicare rate.1 Ultimately, the determination of whether the charges were reasonable, related, and necessary is a fact dependent one, in which the Medicare reimbursement rate may be considered in terms of what is reasonable.
It is not the trial court’s role to second guess this determination.
If the legislature has chosen not to define the term “reasonable,” it is not a court’s function to determine, across the board that an insurer’s internal method of gauging reasonableness does or does not comply with the statute. The fact-finder must construe the word “reasonable” and determine whether the insurance company’s evaluation of medical bills fits the definition on a case-by-case basis. Our decision is consistent with the nature of PIP litigation. If an insurer refuses to pay medical expenses that an insured believes are reasonable, the insured may sue, but he or she bears the burden of establishing that the charges are, in fact, reasonable. In some cases, a computer database may accurately assess the reasonableness of a medical provider’s bill; in other cases, it may be far from the mark. But this is the insured’s burden to prove. Presumably, insurance companies will be deterred from making inaccurate assessments of reasonableness by the penalty they face if they lose in court — payment of their policyholders’ legal fees.
State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244, 1246 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D1757a] (citations omitted).
We, therefore, REVERSE and REMAND the County Court’s entry of Final Judgment. We DENY Appellee’s Motion for Attorney’s fees and costs, and GRANT Appellant’s Motion for Attorney’s fees and costs, subject to section 768.79, Florida Statutes.
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1State Farm’s policy provides, in part: “To determine whether a charge is reasonable we may consider usual and customary charges and payments accepted by the provider, 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.”
