27 Fla. L. Weekly Supp. 993b

Online Reference: FLWSUPP 2712DIAZInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavits filed by insurer precluded summary judgment in favor of medical provider on issue of reasonableness of charges where affidavits created genuine issue of material fact

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. AMERICAN MOBILE HEALTH SERVICE, INC. a/a/o Raysa Diaz, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2018-179-AP-01. L.T. Case No. 2012-3067-SP-26. February 14, 2020. An Appeal from the County Court in and for Miami-Dade County, Hon. Lawrence D. King, County Court Judge. Counsel: Nancy W. Gregoire, Birnbaum, Lippman & Gregoire, LLC, for Appellant. David B. Pakula, Corredor, Husseini & Snedaker, P.A., for Appellee.

(Before TRAWICK, WALSH and REBULL, JJ.)

(PER CURIAM.) In this case, the trial court entered final judgment awarding personal injury protection (PIP) benefits to Appellee. Judgment was entered after the trial court granted Appellee’s motion for summary judgment on the issues of relatedness, medical necessity and reasonableness of the Appellee provider’s x-rays and charges. We find that the expert’s affidavit provided by Appellant was sufficient to create a genuine issue of material fact which required the denial of Appellee’s motion for summary judgment. We must therefore respectfully reverse the decision of the trial court.

Raysa Diaz, the insured, was involved in a parking lot automobile accident. Over a month later Appellee, the provider, took physician ordered x-rays of Diaz of the cervical, thoracic and lumbar spine, and the left shoulder. Appellee accepted the assignment of benefits from Diaz and submitted bills to Diaz’ insurer, Appellant State Farm Mutual Automobile Insurance Company (State Farm). State Farm paid the claim at reduced reimbursement levels. Appellee disputed this reduction and brought this action.

Appellee filed a motion for final summary judgment on the reasonableness of its charges.¹ In support of its motion Appellee presented two affidavits:

1) the affidavit of William Ferreira, the provider’s owner and administer. He stated that he had reviewed hundreds of PIP Explanations of Benefits (EOBs) and was familiar with reasonable reimbursements. He also reviewed charges of other providers for the same services and indicated that the provider’s charges were billed at a lower rate. He concluded that the charges at issue were usual and customary in the community and were reasonable.

2) the affidavit of Dr. Kevin J. Wood, D.C., the owner of a chiropractic facility. Dr. Wood discussed his experience as a chiropractic physician and manager of various facilities throughout the State of Florida, including one where he was the facility owner; as a medical director of a health care facility; and as a peer review physician with an extensive background in the review of medical billing. His experience was primarily in South Florida. Based on this experience, he also concluded that Appellee’s charges were usual and customary in the community and were reasonable.

In response to the motion for summary judgment, Appellant presented several documents, including

1) the affidavit of Missy Stover, a claims representative for State Farm who was assigned to the provider’s claim file and who said that State Farm had considered the Medicare Part B fee schedule in determining the reasonableness of the provider’s fees for x-rays;

2) the deposition of Dr. Wood, who said that if he suspected bone fractures or dislocations, he would not “touch a person” before obtaining x-ray results; and

3) The affidavit of Dr. Michael W. Mathesie, D.C. He stated that he had been a board-certified practicing chiropractic physician for twenty-seven years. He proffered that he was a forensic expert, a State of Florida Department of Health (DOH) expert witness consultant, a DOH regulatory board member and a consumer advocate ombudsman. He reviewed thousands of medical bills and EOBs from multiple insurance companies. He also indicated that he had reviewed forms, bills and medical records of providers from all over the State of Florida. Based upon this experience, he stated that he was aware of medical billing and coding practices for the billing codes at issue in this case for providers throughout not only Miami-Dade, Broward and Palm Beach counties, but the entire State. He also said that he was aware of the reimbursement levels and payments accepted in South Florida by managed care payers, Health Maintenance Organizations (HMOs), Preferred Provider Organizations (PPOs), private health insurance coverage, PIP carriers, and self-paying patients. He also indicated familiarity with various state and federal fee schedules. Based on this experience, he stated that Appellant’s reimbursement was at the “highest end range of reimbursement rates for all other insurance coverage, ” and opined that the total charges of the provider here were unreasonable, while the amount approved and paid by Appellant were reasonable.

The standard of review applicable to summary judgment is de novo, and requires the appellate court to view the evidence in a light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. To analyze summary judgment properly, the appellate court must determine: (1) whether there is a genuine issue of material fact, and (2) whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130-31 (Fla. 2000) [25 Fla. L. Weekly S390a]. It is well established that summary judgment should only be granted if the moving party demonstrates conclusively that no genuine issues exist as to any material fact, with all reasonable inferences drawn in favor of the opposing party. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).

Summary judgment cannot be granted “if the evidence is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues.” Albelo v. Southern Bell, 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2165a]. If the record reflects the existence of any issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper and must be denied. Milgram v. Allstate Ins. Co., Inc., 731 So. 2d 134, 135 (Fla 1st DCA 1999) [24 Fla. L. Weekly D1069a]; United Automobile Ins. Co. v. Miami-Dade County MRI, Corp. a/a/o Beisy Munoz 2017-170-AP-01 (Fla. 11th Cir. Ct. Dec. 31, 2019). In ruling on a motion for summary judgment, it is well-established that the court may neither adjudge the credibility of the witnesses nor weigh the evidence. Hernandez v. United Auto. Ins. Co., Inc., 730 So. 2d 344, 345 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D646a].

Section 627.736(5)(a)(1), Florida Statutes (2009-2012), provides the following guidance to determine whether a charge for treatment is reasonable:

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.

Here, the trial court considered the affidavits in support of the motion provided by Ferreira and Dr. Wood. The court apparently found that they were sufficient to establish that the provider’s charges were reasonable.² The court likewise had before it the affidavits of Dr. Mathesie and Stover, along with deposition excerpts of Dr. Wood in opposition to the motion. In the absence of findings, it is unclear why the trial court found that these documents, and in particular the affidavit of Dr. Mathesie, were insufficient to establish a genuine issue of material fact on the reasonableness of the provider’s charges.³

As our review is de novo, we have reviewed Dr. Mathesie’s affidavit in conjunction with the other documents presented in opposition to the summary judgment motion in a light most favorable to the Appellant. Several of the most compelling aspects of Dr. Mathesie’s affidavit are detailed above. We find that “at the very least [these documents were] sufficient to suggest the possible existence of a genuine issue of material fact by providing the ‘iota’ or ‘scintilla’ of evidence necessary to withstand summary judgment.” United Automobile Ins. Co. v. Miami-Dade County MRI, Corp. a/a/o Beisy Munoz 2017-170-AP-01 (Fla. 11th Cir. Ct. Dec. 31, 2019), citing Ortega v. Citizens Property Ins. Corp., 257 So.3d 1171, 1172 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D2427b]. Thus, the trial court should not have granted the Appellee’s motion for summary judgment.

Reversed and remanded for proceedings consistent with this opinion. (TRAWICK, WALSH and REBULL, JJ., concur.)

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¹Appellee’s motion also asked the court to grant summary judgment on the issues of relatedness and medical necessity. The court granted the motion. However, Appellee has now confessed error as to these issues.

² The trial court’s order contains no findings, but simply grants the motion for summary judgment.

³The trial court did not hold a Daubert hearing and thus made no findings as to whether any of the experts were qualified to render the opinions expressed in their affidavits. While Appellee’s answer brief argues that under Daubert the trial court acted within its discretion in determining that Dr. Mathesie’s affidavit was inadmissible, in the absence of a Daubert hearing or any specific findings by the court, Appellee’s argument is not supported by the record. Thus, we will not consider any Daubert issue here despite “a great temptation in cases like this one to provide precedent where precedent is needed,” Clark v. State, 170 So.3d 69, 71 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D1289b].