27 Fla. L. Weekly Supp. 186a

Online Reference: FLWSUPP 2702AGUIInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit is conclusory and contains pure opinion that is based on nothing but affiant’s own experience — Relatedness and medical necessity of treatment — Opposing affidavit does not preclude summary judgment on issues of relatedness and necessity of treatment where affidavit is conclusory and attempts to raise issues of sufficiency of records, unbundling/upcoding, and services not rendered that were not timely raised in affirmative defenses

A-PLUS MEDICAL & REHAB CENTER a/a/o Gilma Aguirre, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, a Florida Corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-13641 SP 25 (1). March 19, 2019. Linda Diaz, Judge. Counsel: Walter A. Arguelles, Arguelles Legal, P.L., Miami, for Plaintiff. Craig Collin, Roig Lawyers, Deerfield Beach, for Defendant.

ORDER ON PLAINTIFF’S MOTION FORSUMMARY JUDGMENT REGARDING THE ISSUE OFREASONABLENESS, RELATEDNESS AND MEDICALNECESSITY OF THE SERVICES AT ISSUE

THIS MATTER, having come before the court for hearing on March 4, 2019, on Plaintiff’s Motion for Summary Judgment regarding the issue of Reasonableness, Relatedness and Medical Necessity, the Court having reviewed the Plaintiff’s motion, read relevant legal authority, heard argument from counsel of each party, and having been sufficiently advised in the premises, finds as follows:

LEGAL ISSUE

The issue before the Court is whether the services at issue are reasonable in pricing, medically necessary and related to the subject automobile accident.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

On or about March 17, 2008, Gilma Aguirre (hereinafter referred to as “Claimant”) was involved in an automobile accident in which he sustained injuries. As a result thereof, the claimant sought medical attention at A-Plus Medical & Rehab Center (herein after referred to as “Plaintiff”). Bills were submitted by the Plaintiff to State Farm Fire & Casualty Company (herein after referred to as “Defendant”). The Defendant tendered partial payment for the services rendered by A-Plus Medical & Rehab Center pursuant to 80% of the schedule of maximum charges referenced in Fla. Stat. §627.736(5)(a)(2)(f) (2008).

The Plaintiff has filed its Motion for Summary Judgment regarding the issue of reasonableness, relatedness and medical necessity. In support of its Motion for Final Summary Judgment, the Plaintiff has filed the affidavits of Clara Perez, who is the person with the most knowledge regarding Plaintiff’s billing practices and procedures, and Marc Rogoff, D.C. Additionally, the Plaintiff has filed the deposition transcript of Dean Rogers. The Defendant on the other hand, has filed the affidavit of Michael Mathesie, D.C.

ANALYSIS

Summary judgment is only appropriate “if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]. The burden is on the party moving for summary judgment to prove a “complete absence of a triable issue of material fact, and the proof must be such as to overcome all reasonable inferences which could be drawn in favor of the non-moving party.” Aagaard-Juergensen, Inc. v. Lettelier, 540 So.2d 224 (Fla. 5th DCA 1989) (citing Landers v. Milton, 370 So.2d 368 (Fla. 1979)). Additionally, the moving party must disprove or establish as legally insufficient the non-moving party’s affirmative defenses. Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2089b]. Since “summary judgments deprive the losing party of his or her day in court,” such motions should be granted only when there are no genuine issues of material fact to be resolved by the trial court. Villages at Mango Key Homeowners Ass’n, Inc. v. Hunter Dev., Inc., 699 So.2d 337, 338 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D2271b]. Simply stated, in the instant matter, the burden is on Plaintiff to establish that the charges at issue reasonable, related and medically necessary. Once the Plaintiff has established its prima facie case, the burden then shifts to the Defendant to establish a genuine issue of material fact. With that being said, it is not sufficient for the Defendant to simply state that the Plaintiff’s services are unreasonable, not medically necessary or related without providing insight as to how this determination was made. See Progressive Express Ins. Co. v. Freidman, M.D., P.A, 14 Fla. L. Weekly Supp. 320c.

REASONABLENESS OF CHARGES

In arguing reasonableness, the Plaintiff relies on the interpretation of A.J. v. State, 677 So. 2d 935 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]. The Plaintiff argues to the Court that its prima facie showing of the reasonableness of the medical charges can be established by introducing the medical bill into evidence, along with testimony that the patient received the treatment in question. See also Pan Am Diagnostic Svsc., Inc. a/a/o Fritz Telusma v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. 17th Jud. Cir., October 1, 2013). “A medical bill constitutes the provider’s opinion of a reasonable charge for the services.” A.J., 677 So. 2d at 937. Plaintiff has filed the affidavit of Clara Perez, the person with the most knowledge regarding billing matters of A-Plus Medical & Rehab Center authenticating the subject medical bills and verifying that the services at issue were rendered to the Plaintiff. As such, the Plaintiff has established its prima facie case as to reasonableness.

Plaintiff not only meets the standard by properly introducing the bill as evidence, but goes beyond the minimum requirements to make its prima facie showing of reasonableness with the affidavit of Clara Perez. A Plaintiff may present lay testimony from a fact witness with first-hand knowledge as to why the charge for the service was set at the rate at which it was billed. Nat’l Nuclear Ctr., Inc. v. State Farm Mutual Auto. Ins. Co., Case No. 13-15590 (Fla. Broward Cty. Ct. Apr. 7, 2017) [25 Fla. L. Weekly Supp. 198a] (citing Sea World of Florida, Inc., v. Ace American Ins. Co., 28 So. 3d 158, 160 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So. 2d 1122, 1123 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]; East West Karate Ass’n v. Riquelme, 638 So. 2d 605, 605 (Fla. 4th DCA 1994); State Farm Mutual Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a (Fla. 11th Cir. Ct. 2004). Ms. Perez testifies that when setting the charges for A-Plus Medical & Rehab Center consideration was given to numerous factors including, but not limited to, the usual and customary charges of other medical providers within the geographic region who offer similar services as A-Plus Medical & Rehab Center. Moreover, she testifies that A-Plus Medical & Rehab Center’s charges fall within the usual and customary charges for such medical procedures within South Florida.

The Plaintiff also argues that the Defendant nevertheless has admitted that the charges are reasonable by virtue of its failure to respond to Plaintiff’s Request for Admissions regarding Reasonableness or filing a Motion for Relief from Technical Admissions. In support of same, the Plaintiff relies on the case of Singer v. Nationwide Mutual Fire Ins. Co., 512 So. 2d 1125, 1126 (Fla. 4th DCA 1987) in which the Court indicated that if no motion for relief is filed with the court, summary judgment may be awarded based on the deemed admissions. Id., at 1134-35; see also In re Forfeiture of 1982 Ford Mustang, 725 So. 2d 382, 384-385 (Fla. 2d DCA 1988). Although the Courts are fairly liberal in granting relief from admission, Defendant’s “lack of diligence in not moving to file belated answers or relief from admission pushes the limits of the liberal standard too far.”¹ It is incumbent upon those who appear before the Court to abide by the rules promulgated by the Supreme Court and the parties are not at liberty to circumvent those rules in an attempt to defeat a motion for summary judgment.Affidavit of Michael Mathesie, D.C.

The Defendant has filed the affidavit of Dr. Michael Mathesie, D.C. in opposition to Plaintiff’s Motion for Summary Judgment. Even if the Court was to disregard the Defendant’s technical admission, the Court finds that the affidavit was insufficient so as to create a genuine issue of material fact.

The sum and substance of Dr. Mathesie’s affidavit testimony is that nothing in excess of Defendant’s reimbursement equal to 80% of 200% of Medicare Part B fee schedule can ever constitute a reasonable charge for services rendered by the Plaintiff. As set forth below, Dr. Mathesie’s opinion cherry picks data and methodology to advance a litigation position maintained by Defendant contrary to its own policy of insurance and binding precedent.

Dr. Mathesie formulates his ultimate opinion premised on:

(i) what his practice globally accepts as reimbursement for chiropractic services,

(ii) PIP insurers’ trend post 2008 to systematically reimburse chiropractic services at 200% of Medicare Part B,

(iii) reasonableness of State Farm’s reimbursement, and

(iv) negotiated and approved payment schedules of Health insurers including HMOs and PPOs (80% – 140% of Medicare) and reimbursement of commercial insurers (80% – 140% of Medicare).

In reviewing Dr. Mathesie’s affidavit, this Court finds it contains “pure opinion” testimony which does not appear to be based upon anything other than his own experience which is specifically precluded under Fla. Stat. 90.702.² In stating that he accepts an amount equal to or less than 80% of 200% of Medicare Part B as reimbursement for chiropractic services rendered by his office he formulates a “pure opinion” that reimbursement rate of PIP insurers equal to 80% of 200% of Medicare Fee is viewed as the maximum charge that can be deemed reasonable in the community. He then makes a quantum leap and concludes that Plaintiff’s charges are “unreasonable” since Plaintiff’s charges exceed the usual and customary reimbursement levels in the community without providing any insight as to what PIP carriers within the geographic region charge for the same or similar services at issue.

Additionally, Dr. Mathesie never mentions other charges that would go to show how the Plaintiff’s charges are unreasonable. In fact, Dr. Mathesie indicates that the amounts billed by other providers do not provide any correlation to a reasonable charge. The one and only reference Dr. Mathesie makes to actual charges is to state that he “would have globally, charged $6,270.00” for these visits (See paragraph 27 of Dr. Mathesie’s affidavit). Yet, he does not breakdown how he would have come to that total figure or set forth any methodology or explanation as to why his charges should be the benchmark for determining reasonableness. Instead he makes a conclusory opinion stating that no provider would expect to be reimbursed at a rate higher than the 200% of Medicare Fee Schedule (see paragraph 25 of Dr. Mathesie’s affidavit). Moreover, Dr. Mathesise fails to set forth a valid basis or methodology as to why the Plaintiff’s charges are “unreasonable” simply because Medicare and other methodologies reimburse less. The fact that Medicare and health insurance reimburse less than the amount billed by the Plaintiff, by itself, is insufficient to create a question of fact as to the reasonableness of the charged amounts here.

Dr. Mathesie goes on to make similar (and numerous) conclusory statements within his affidavit, focusing on State Farm’s reimbursement levels rather than the Plaintiff’s charge. These statements, taken to their logical conclusion, would stand for the proposition that it is his opinion that no provider should be charging any more than what State Farm is willing to reimburse. In short, Dr. Mathesie’s methodology is flawed since the relevant inquiry is not Defendant’s reimbursements but rather the reasonableness of Plaintiff’s charges. Finally, the Court notes that Dr. Mathesie continuously makes reference to a community pricing report summary which was not attached to the affidavit nor timely provided to Plaintiff as per Rule 1.510, as such, any referenced to same is impermissible.³

RELATEDNESS AND MEDICAL NECESSITY

Relatedness and medical necessity is established by showing that injuries and subsequence medical treatment arose out of a subject accident. See Sevila & Witt Pressley Weston v. United Automobile Insurance Company, 21 Fla. L. Weekly Supp. 306b (11th Judicial Circuit)(Appellate Capacity, November 26, 2013). See also In re Standard Jury Instructions in Civil Cases, 966 So. 2d 940, 942 (Fla. 2007) [32 Fla. L. Weekly S563a] (medical treatment covered by the insurance policy is treatment to the bodily injury arising out of the ownership, maintenance, or use of the motor vehicle). The Plaintiff has filed the affidavit of the treating physician, Dr. Marc Rogoff, D.C. to establish its prima facie case on the issue of relatedness and medical necessity.

Dr. Rogoff’s affidavit specifically indicates reviewing the claimant’s history for purposes of medical diagnosis, complaints, conducting a thorough examination, diagnosis, and program prescribed. He indicates that it is his medical opinion, within a reasonable degree of medical probability, that the injuries sustained were related to the subject automobile accident as the patient did not exhibit any lingering symptoms or complaints in connection with any injuries which she may have sustained in any prior automobile accidents. Moreover, he states that the services at issue were designed to restore, maintain, and promote optimal physical function as well as to prevent the onset, symptoms, and progression of impairments, functional limitations, and disabilities that may result from injuries sustained in the subject automobile accident.⁴

With respect to the issue of relatedness, in PIP cases “the medical treatment covered by the insurance policy is treatment that is related to the bodily injury arising out of the ownership, maintenance, or use of the motor vehicle. Sevila Pressley Weston v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 306b (Fla. 11th Cir. 2013)(Appellate Capacity) citing to In re Standard Jury Instructions in Civil Cases, 966 So.2d 940, 942 (Fla. 2007) [32 Fla. L. Weekly S563a]. In other words, relatedness is established by showing that injuries and subsequent medical treatment therefore arose out of a subject accident. Id. Dr. Rogoff’s affidavit opines that the patient’s injuries are, with reasonable chiropractic probability, causally related to the March 17, 2008 motor vehicle accident as the patient did not exhibit any lingering symptoms or complaints in connection with any injuries which he may have sustained in any prior automobile accidents. As such, this Court finds that the Plaintiff has established its prima facie case on the issue of relatedness and medical necessity.Affidavit of Michael Mathesie, D.C.

In order to create any genuine issue of material fact regarding whether the subject treatment and injuries was medically necessary and related, the Defendant is required to either substantially impeach the medical expert testimony of the treating physician, or present countervailing evidence from a licensed physician. Cicero Ortho-Med Center v. United Automobile Insurance Co., 11 Fla. L. Weekly Supp. 922a (Fla. Miami-Dade Cty. Ct., 2004); Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1993).

In opposing Plaintiff’s affidavit, the Defendant relies upon the affidavit of Dr. Michael Mathesie, D.C. however his testimony must fail as it is conclusory. Dr. Mathesie repeatedly attempts to create issues of fact as to the medical necessity, and relatedness by raising issues with the sufficiency of the records⁵, unbundling/upcoding and services not being rendered. The Defendant has not timely raised affirmative defenses regarding these issues, and accordingly are not presently an issue in the case. Fla. R. Civ. Pro. 1.140(h)(1)⁶. Therefore, the Court finds that the Defendant cannot utilize the testimony of Dr. Mathesie as a conduit to inject otherwise unpled affirmative defenses in this case. Broward Health & Rehab vs. State Farm Mutual Automobile Insurance Company, (Broward, County Court, Case No. COCE 12-021042, Judge Lee, 10/13/2015). The Supreme Court has barred the injection of new claims or theories into an action, including in cases where the new claim or theory was devised to evade summary judgment disposition. See Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A., [v. Bowmar Instr. Corp.], 537 So. 2d [561] at 563.

Moreover, Dr. Mathesie’s affidavit fails to present actual and/or factual evidence which would purport to, more or less, show that the injuries and ensuing medical treatment did not arise out of the subject accident. The mere denial that the treatment was related without the demonstration of some intervening act or circumstance eliminating the pre-existing relatedness does not create a genuine issue of material fact. Dr. Mathesie’s affidavit failed to present any competent evidence refuting the testimony of Dr. Rogoff or demonstrate any factual basis to conclude that the claimant was treated for anything other than the injuries she sustained in the March 17, 2008 accident.

Therefore, it is ORDERED and ADJUDGED that as a matter of law, Plaintiff’s Motion for Summary Judgment regarding the issue of Reasonableness, Relatedness and Medical Necessity is hereby GRANTED with the exception to CPT Code 97250 which was withdrawn by the Plaintiff.

__________________

¹ Windhaven Ins. Co. v Advance Chiro & Medical Ctr, Corp., 22 Fla. L. Weekly Supp. 1015e (17th Judicial Circuit)

²See also Perez v. Bell South Telecommunications, Inc., 138 So.3d 492 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b] (“expert testimony that might otherwise qualify as ‘pure opinion’ testimony is expressly prohibited”).

³See State Farm Mut. Auto. Ins. Co. v. Figler Family Chiropractic, P.A., No. 4D15-2716 (March 30, 2016) [41 Fla. L. Weekly D805b]. (The Court, in its appellate capacity, ruled that “just as the rule requires that the grounds for the motion be specifically identified, the rule also requires that the evidence in support of and in opposition to the motion be specifically identified, prior to the hearing.” See also Allison v United Auto. Ins. Co., 24 Fla. L. Weekly Supp. 705a (September 29, 2016) holding that insurer failed to satisfy Rule 1.510(c)’s notice requirement of its intent to rely on affidavit in support of or in opposition to any motion for summary judgment.

⁴Medically Necessary as defined by Florida Statute §627.736 means a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is in accordance with generally accepted standards of medical practice; clinically appropriate in terms of type, frequency, extent, site, and duration; and not primarily for the convenience of the patient, physician, or healthcare provider.

⁵Even if the Court was to entertain a claim of “deficient medical records”, said defense does not correlate to evidence of a lack of medical necessity or relatedness for the treatment billed. See Nob Hill Chiropractic a/k/a Michael J. Cohen DC PA (a/a/o Kenrick Grant) v. State Farm Mutual Automobile Insurance Co., 21 Fla. L. Weekly Supp. 195a (Broward Cty. Ct. 2013; Priority Medical Centers, LLC (a/a/o Arlene Robinson-Rampone) v. State Farm Fire and Casualty Co., 21 Fla. L. Weekly Supp. 201b (Broward Cty. Ct. 2013)

⁶The Plaintiff has filed the deposition of Dean Rogers in support of its motion, in which no mention was made as to the issues now being raised by Dr. Mathesie.