27 Fla. L. Weekly Supp. 348a
Online Reference: FLWSUPP 2704TULIInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Trial court did not err in finding that affidavit of medical provider’s owner met summary judgment burden on issue of reasonableness of MRI charge — Trial court abused discretion by rejecting affidavit of insurer’s expert where affiant explained how his experience led to his opinion on reasonableness of charge, why his experience provided sufficient basis for his opinion and how his experience is reliably applied to facts — Error to enter summary judgment in favor of provider on reasonableness issue
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellant, v. PAN AM DIAGNOSTIC SERVICES, INC. d/b/a WIDE OPEN MRI a/a/o Marco Pardo Tulio, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 17-309 AP. L.T. Case No. 2013-009609 SP 23. July 12, 2019. On Appeal from the County Court in and for Miami-Dade County, Florida, Judge Jason E. Dimitris. Counsel: Michael A. Rosenberg, Gregory Willis, and Daniel Marc., for Appellant. Virginia M. Best, Johanna M. Menendez, and Yigal D. Hahana, for Appellee.
[Lower court order published at 25 Fla. L. Weekly Supp. 559a.]
AMENDED OPINION1
(Before MIGNA SANCHEZ- LLORENS, ANGELICA D. ZAYAS, and SCOTT BERNSTEIN, JJ.)
(SANCHEZ-LLORENS, J.) State Farm Mutual Automobile Insurance Company (“State Farm”) insured Marco Tulio who was injured in a motor vehicle accident on August 1, 2012 and received medical diagnostic testing (“a magnetic resonance imaging” or “MRI”) from Pan Am Diagnostic Center d/b/a Wide Open MRI (“Pan Am” or “Provider”). Pan Am billed State Farm $2,150.00, but State Farm paid only $939.87. Pan Am sued for the difference between $989.87 and 80% of $2,150.00. State Farm conceded that the MRI performed by Pan Am was related to an injury suffered by the insured in a motor vehicle accident, and that the MRI was medically necessary. However, State Farm challenged the reasonableness of the amount of Pan Am’s charge.
Pan Am moved for summary judgment, filing an affidavit of its owner and director, Roberta Kahana, in support of the reasonableness of the charge. In opposition to summary judgment, and in support of its argument that the charge was not reasonable, State Farm filed the affidavit of its expert witness, Dr. Edward Dauer. Pan Am moved to strike Dr. Dauer pursuant to Daubert, and the original trial judge held a Daubert hearing at which Dr. Dauer testified. The judge denied the motion to strike. However, a successor judge later granted summary judgment, rejecting Dr. Dauer’s affidavit under Daubert.
State Farm has appealed and argues that the trial court erred by granting summary judgment because Ms. Kahana’s affidavit was insufficient. State Farm also argues that even if Ms. Kahana’s affidavit was sufficient, Dr. Dauer’s affidavit was sufficient to create a genuine issue of material fact regarding reasonableness.
As to Ms. Kahana’s affidavit, we agree with the trial court’ that the affidavit was sufficient to meet the Provider’s summary judgment burden and shift the burden to State Farm to show that there was a disputed issue of fact as to the reasonableness of the charges. Ms. Kahana’s affidavit states that she is the owner of Pan Am and that she has personal knowledge that the matters stated in the affidavit are true and correct. In attesting to the reasonableness of the charges, Ms. Kahana states that she is familiar with the usual and customary charges in the community, given the number of years she has worked in the diagnostic studies industry as well as being an owner of three MRI facilities. She states that, as an owner of MRI facilities, she has gained knowledge of the usual and customary charges in the community, and of the reimbursement rates her facility received from insurers who did not make the 200% of Medicare election in their policies. Ms. Kahana is familiar with usual and customary charges because she has reviewed thousands of explanations of benefits (“EOBs”) from different PIP insurers. Based on Ms. Kahana’s review of these EOBs and her knowledge of the reimbursement rates her facility received, she can state that the $2,150.00 that Pan Am charged was within the range of what was reasonable and customary in 2013 in South Florida.
State Farm asserts that because a lay witness cannot rely on hearsay, Ms. Kahana may not testify about something she was told rather than something that she perceived. However, the conclusions in Ms. Kahana’s affidavit are based, not on hearsay, but on her perceptions and years of experience as an owner of MRI facilities and from reviewing thousands of EOBs and consulting the 2013 Ingenix data.2
State Farm also argues that Ms. Kahana’s affidavit is self-serving, but that argument goes to the weight that the affidavit should be given when evaluating the evidence, rather than its admissibility, which is not a proper consideration on summary judgment. The trial court was correct to find that Ms. Kahana’s affidavit met the Provider’s summary judgment burden.
As to Dr. Dauer’s affidavit, the trial court rejected it pursuant to the Daubert test; however, our review of the summary judgment entered below finds that Dr. Dauer’s affidavit was sufficient under the Daubert standard. See In re Amendments to Florida Evidence Code, SC19-107, 2019 WL 2219714 (Fla. 2019) [44 Fla. L. Weekly S161a].3
The initial trial judge denied the Provider’s motion to strike Dr. Dauer as an expert after an evidentiary Daubert hearing. However, in its motion for final summary judgment, filed before the successor trial judge, the Provider again challenged Dr. Dauer’s expertise under Daubert. We review the trial court’s ruling under an abuse of discretion standard since the Provider objected to Dr. Dauer’s expertise in its motion for final summary judgment and the trial, court made its Daubert ruling on a timely and proper objection to an expert’s opinion. See Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109, 1110 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1308a]; Baan v. Columbia Cty., 180 So. 3d 1127, 1131-132 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D2707a]; Booker v. Sumter Cty. Sheriff’s Office, 166 So. 3d 189, 192-93 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1291c]; State Farm Mut. Auto. Ins. Co. v. Progressive Health Servs. a/a/o Fernando Angulo, Case No. 16079 AP 01 (Fla. 11th Cir. Ct. July 12, 2018) [27 Fla. L. Weekly Supp. 15a].
The record on appeal contains both an original affidavit and an amended affidavit of Dr. Dauer. Dr. Dauer has been a medical doctor licensed in Florida since 1976 and is Board Certified in Diagnostic Radiology by the American Board of Radiology. It is apparent, based upon his amended affidavit, that Dr. Dauer has extensive experience in radiology, including experience treating patients, and experience reviewing and evaluating treatments, charges, and reimbursements. His affidavit explains how his knowledge and experience, including decades of practicing as a medical doctor and reviewing bills for patients who were injured in automobile accidents, backed up by discussions with his peers and colleagues, provides him with knowledge regarding the reasonableness for fees for services like the ones at issue in this case. In accordance with Baan, Dr. Dauer has explained how his experience led to his opinion on the reasonableness of the Provider’s charges (he has considered and evaluated the medical charges and medical reimbursements of hundreds of people, and has over 45 contracts with private insurance companies to provide radiology services in South Florida), why his experience provided him with a sufficient basis for his opinion (the contracts provide reimbursement rates ranging from 55% to 80% of the Medicare fee schedule), and how his experience is reliably applied to the facts (the $2,150.00 charge bears no relation to the amounts usually and customarily accepted as full payment by Pan Am for its services). Baan, 180 So. 3d at 1133. Thus, the trial court abused its discretion when it determined that Dr. Dauer’s affidavit did not meet the Daubert standard.
Dr. Dauer’s affidavit was proper under Daubert and it created a genuine issue of material fact. Summary judgment should not have been granted. Accordingly, we REVERSE the summary judgment entered below and remand for further proceedings. (ZAYAS and BERNSTEIN, B., concur.)
__________________
1Original opinion was signed on June 7, 2019, nunc pro tunc to June 7, 2019.
2The 2013 Ingenix National Fee Analyzer provides physician practices with three percentiles of charge data and the average Medicare fee-for-fee schedule development, competitive analysis and contracting purposes.
3Under the “pipeline rule,” the disposition of a case on appeal should be made in accordance with the law in effect at the time of the appellate court’s decision. N. Broward Hosp. Dist. v. Kalitan, 174 So. 3d 403, 412 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1531a]. On May 23, 2019, the Florida Supreme Court adopted the Daubert standard as set forth by the Legislature in section 90.207 of the Florida Evidence Code. In re Amendments to Florida Evidence Code, SC19-107, 2019 WL 2219714 (Fla. 2019) [44 Fla. L. Weekly S161a] (receding from DeLisle v. Crane Co., 258 So.3d 1219 (Fla. 2018) [43 Fla. L. Weekly S459a], in which it had determined that Frye, not Daubert was the appropriate test in Florida.) Thus, we apply the Daubert standard, as did the trial court below.
