27 Fla. L. Weekly Supp. 423a
Online Reference: FLWSUPP 2704LUCIInsurance — Personal injury protection — Coverage — Medical expenses — Summary judgment — Unrefuted opinions of physician employed by medical provider are sufficient to establish provider’s prima facie case on issues of relatedness and necessity of treatment and reasonableness of charges — Partial summary judgment is entered in favor of provider
QUALITY MEDICAL GROUP, INC., (a/a/o Carlos Lucin), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-9825 SP 25 (04). October 27, 2016. Carlos Guzman, Judge. Counsel: Armando Brana (Trial Counsel) and Marlene S. Reiss (Appellate Counsel), for Plaintiff/Appellee. Catherine Massard Ribetti (Trial Counsel) and Michael Neimand (Appellate Counsel), for Defendant/Appellant.
ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT ON RELATEDNESS,MEDICAL NECESSITY AND REASONABLENESS
THIS CAUSE came before the Court on April 18, 2016, on Plaintiff’s Motion for Summary Judgment on the Plaintiff’s prima facie case of relatedness, medical necessity and reasonableness, the Court having reviewed the Motion for Summary Judgment, and having reviewed all pertinent documents, and having heard argument of counsel, it is hereby
ORDERED AND ADJUDGED:
Plaintiff’s Motion for Partial Summary Judgment is hereby GRANTED.
This case involves Quality Medical Group’s claim for Personal Injury Protection (PIP) benefits, as the valid assignee of United Auto’s insured, Carlos Lucin.
On October 1, 2014, the Plaintiff moved for summary judgment on the issues of reasonableness of the bills, medical necessity of the treatment, and relatedness of the injuries to the subject accident. On October 3, 2015, the motion was set for hearing on April 18, 2016 by way of a notice of special set hearing.
The motion was supported by the affidavit of Albert Canler, the corporate representative of Quality Medical and the person responsible for billing and settlement procedures, as well as the affidavit of Dr. Raymond M. Ruszkowski, both of which were filed with the Court on October 28, 2014.
On October 30, 2014, the Plaintiff filed its Notice of Intent to Rely on these affidavits.
United filed nothing in response.
The summary judgment proceeded to hearing on April 18, 2016.United Auto’s Ore Tenus Motion toContinue the Summary Judgment Hearing
At the hearing for the first time, United Auto’s counsel argued for a continuance of the summary judgment motion on the alleged basis that counsel was in trial the week before the hearing and did not have time to file any opposing evidence, and that a hearing on United’s accord and satisfaction defense scheduled the week earlier had been cancelled (by United Auto). At the hearing, United’s counsel argued that its summary judgment on accord and satisfaction was a “condition precedent” to the hearing on the Plaintiff’s motion — an argument that the Court rejects. United Auto’s reliance on its affirmative defense scheduled the week earlier (and cancelled by United Auto) as “dispositive of the case” is debatable. The Court finds that one issue does not necessarily have anything to do with the other. While United Auto suggested both motions could be scheduled at the same time in the future, the delay between Plaintiff’s filing of its motion for summary judgment and the setting thereof gave United Auto sufficient time to prepare any opposition.
The Court finds that there was no substantiated reason presented by United Auto for the delay in preparing an opposition brief to the Plaintiff’s Motion for Summary Judgment, and as such, the denial of a continuance was not improper, based upon the Court’s balancing of the harm and prejudice to both sides.Summary Judgment
Quality Medical rendered services to Mr. Lucin from September 8, 2009 to November 25, 2009, and submitted bills that totaled $7,117.00. United Auto sent a purported “full and final” payment in the amount of $3,545.09 (with a separate interest check). Quality Medical sued for the difference and moved for summary judgment on its prima facie case of relatedness, medical necessity, and the reasonableness of its bills.
At the point of summary judgment, a party must be able to establish the sufficiency of its evidence and issues only get to a jury where fact questions exist for the jury to decide. See Sokoloff v. Oceania I Condo. Assn., Inc., 2016 WL 1133710 (Fla. 3d DCA, Mar. 23, 2016) [201 So.3d 664; 41 Fla. L. Weekly D759a].
“Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” . . .The stated objective of the Florida Rules of Civil Procedure “to secure the just, speedy, and inexpensive determination of every action: is ill served by sending a case to trial only to have the judge direct a verdict.
Sokoloff supra at *1, (citations omitted).Evidence of the Plaintiff’s Prima Facie CaseAlbert Canler
Mr. Canter, the corporate representative of Quality Medical and the person responsible for establishing billing and settlement procedures, authenticates and places into evidence the bills and medical records of Quality Medical by way of his affidavit dated October 1, 2014.Raymond M. Ruszkowski, D.C.
Dr. Ruszkowski works for Quality Medical Group and reviewed all of Mr. Lucin’s bills and medical records. Dr. Ruszkowski’s affidavit establishes his ability to opine on the relatedness and medical necessity of the treatment rendered, as well as the reasonableness of the medical bills.
United Auto did not challenge Dr. Ruszkowski’s opinion on relatedness and medical necessity. Dr. Ruszkowski is an expert as defined by Fla. R. Civ. P. 1.3901 and, therefore, is qualified to opine on the medical necessity of the treatment rendered and the relatedness of the injuries to the subject car accident.2 His affidavit establishes that he has been a practicing physician for many years. Therefore, partial summary judgment is entered in favor of Quality Medical on those portions of the Plaintiff’s prima facie case because Dr. Ruszkowski’s unchallenged opinions are unrefuted — as United conceded at the summary judgment hearing.
Pertinent to the issue of the reasonableness of the bills, Dr. Ruszkowski was tendered as a lay witness based upon his personal knowledge of Quality Medical’s billing, as a practicing physician at Quality Medical. His affidavit establishes:
16. In my numerous years as a physician, I have reviewed hundreds of medical bills from like kind medical providers in this community. I also own my own medical facility and likewise submit medical charges for the same or similar CPT codes at issue in this case. I am knowledgeable about what a reasonable reimbursement amount is for the CPT codes billed by the Plaintiff in this case. I has gained personal knowledge of reimbursements by Florida P.I.P. insurers for the medical services commonly submitted in connection with P.I.P. claims in the South Florida community, including but not limited to Miami-Dade County.
17. I have reviewed and I am familiar with and have personally reviewed the P.I.P. claim, medical services and prices of the medical services that are in dispute in the litigation pending before this Honorable Court. Based on my background, training and experience and education as a physician, it is my opinion in comparison with the reasonableness of reimbursements that Plaintiff’s medical charges are in line with community standards.
18. That the medical charges of $7,117.00 are reasonable and what is customarily charged in the community for like medical services. I have reviewed the medical charges with the Medical Fees in the United States fee guide for the applicable year(s), and the charges and reimbursements are in line with community standards and within the range of reasonable P.I.P. reimbursements. Also, I have reviewed medical charges from other medical providers providing like medical services such as Miami Medical Group, Inc., Federal Medical Group, Inc., Professional Medical Group, Inc., etc., and the charges are likewise reasonable and customary, as well as, the corresponding reimbursement amounts to the relevant information to CPT codes billed by the Plaintiff as reflected in the Health Insurance Claims Forms (HCFA).
19. In addition, the amount as billed in this care [sic] as reflected in the Health Insurance Claims Forms (HCFA) equate to payments accepted by this provider herein in No Fault cases as reimbursements. The reimbursements amount as billed for each CPT code herein as reflected in the Health Insurance Claims Forms (HCFA(s) equate to reimbursement levels in the community for like kind medical providers and facilities. I have consider [sic] various federal and state fee schedules applicable to automobile and other insurance coverages in the determination of the amounts as charged by the Plaintiff the corresponding reimbursement amounts to be paid herein by the applicable insurers to the Plaintiff which are also in line with community standards.
The Court is aware that §627.736(5)(a)1. sets forth certain factors that may be taken into consideration when determining the reasonableness of a medical bill.3
The Court finds that Dr. Ruszkowski’s affidavit is sufficient to satisfy the Plaintiff’s prima facie case on the reasonableness of Quality Medical’s bills, and that his unrefuted affidavit entitles Quality Medical to summary judgment in its favor on the reasonableness of its bills.
The Court is also aware of cases holding that a prima facie showing of reasonableness can be established by merely presenting the medical bills along with testimony that the services were provided to the patient. See A.J. v. State, 677 So. 2d 935, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e] (“[A] medical bill constitutes the provider’s opinion of a reasonable charge for the services.”).4 The
submission of Quality Medical’s bills to establish its prima facie case on the reasonableness of its bills was unrefuted. As such, the moving party is entitled to summary judgment on the reasonableness of medical bills.5
The only remaining issue is United Auto’s affirmative defense of “accord and satisfaction.”
Accordingly, it is hereby
ORDERED AND ADJUDGED:
that the Plaintiff’s Motion for Partial Summary Judgment is hereby GRANTED.
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1Rule 1.390 defines an “expert witness.”
The term “expert witness” as used herein applies exclusively to a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify.
Fla. R. Civ. P. 1.390(a).
2Dr. Ruszkowski reviewed the medical records and his affidavit is thorough with regard to the relatedness of the treatment to the subject accident, the symptoms with which Mr. Lucin presented, the nature of the diagnosis and treatment, concluding that the injuries were related to the subject September 4, 2009, automobile accident. He further attested that the treatment “was medically necessary and rendered in accordance with generally accepted standards of medical practice, and was clinically appropriate in terms of type, frequency, extent, site, and duration, and was not primarily for the convenience of the patient, physician or other health care providers.”
3Section 62.7736(5)(a)1., Fla. Stat. (2008) sets forth certain evidentiary factors that may be taken into consideration in determining the reasonableness of medical bills:
(a) 1. . . . 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.
Fla.Stats. §627.736(5)(a)1. (emphasis added).
4See also Faye Imaging, Inc. (a/a/o Victor Martinez) v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 182a (Broward Cty. Ct., July 21, 2015); Millennium Radiology, LLC (a/a/o Roberto Diaz) v. UAIC, 22 Fla. L. Weekly Supp. 1100a (Broward Cty. Ct., Mar. 27, 2015); Florida Wellness & Rehab Center, Inc. (a/a/o Jose Ferrer) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 837a (Miami-Dade Cty. Ct., Aug. 7, 2014); Pan Am Diag. Svcs., Inc. d/b/a Wide Open MRI (a/a/o Svetlana Pimanova) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 650a (Broward Cty. Ct., Oct. 9, 2014); Millennium Radiology, LLC (a/a/o Carmen Ruiz) v. UAIC, 22 Fla. L. Weekly Supp. 136b (Broward Cty. Ct., July 14, 2014); Millennium Radiology, LLC d/b/a Millennium Open MRI (a/a/o Mary Butler) v. State Farm Fire & Cas. Co., 22 Fla. L. Weekly Supp. 811a (Broward Cty. Ct., May 5, 2014); Pan Am Diagnostic Svcs. a/a/o Fritz Telusma v. UAIC, 21 Fla. L. Weekly Supp. 200a (Broward Cty. Ct., Oct. 1, 2013)(“A plaintiff’s prima facie showing of the reasonableness of its charges can be established by merely presenting the medical bill produced for the service at issue, along with testimony that the patient received the treatment in question.”); Millennium Radiology, LLC (a/a/o Melvin Galdamez) v. UAIC, 20 Fla. L. Weekly Supp. 1097a (Broward Cty. Ct., Sept. 9, 2013).
5The Court exercises its discretion in considering (or not) the late-filed affidavit of United’s “litigation adjuster,” Annette Calderon, which was filed along with United’s “Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment,” dated April 21, 2016, after the summary judgment hearing, given that United Auto no exigent circumstances were present (or proffered by United Auto) that precluded the timely filing of an affidavit to oppose summary judgment. See Coffman Realty, Inc. v. Tosohatchee Game Pres., Inc., 381 So.2d 1164 (Fla. 5th DCA 1980)(holding that it is not an abuse of discretion for a court to refuse to admit affidavits filed with a motion to rehearing the granting of a summary judgment).
