27 Fla. L. Weekly Supp. 123a

Online Reference: FLWSUPP 2702STORInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Trial court erred in entering summary judgment in favor of medical provider on issues of relatedness and necessity of second interpretation of x-rays that occurred after physical therapy had already been started and reasonableness of charges for second interpretation where opposing affidavits filed by insurer were sufficient to create genuine issues of material fact

STATE FARM MUTUAL INSURANCE, COMPANY, Appellant, v. ROBERTO RIVERA-MORALES, M.D., a/a/o Leonor Patricia Storace, Appellee. Circuit Court of the 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2016-000441-AP-01. L.T. Case No. 2012-002079-SP-26. April 3, 2019. An appeal from the County Court in and for Miami-Dade County, Gloria Gonzalez-Meyer, County Court Judge. Counsel: Nancy W. Gregoire, Birnbaum, Lippman & Gregoire, PLLC, and Allyson S. Jenks, Bronstein & Carmona, P.A., for Appellant. Elliot B. Kula, and William D. Mueller, Kula & Associates, P.A.; and Martin I. Berger, and Zachary A. Hicks, Berger & Hicks, P.A., for Appellee.

(Before HIRSCH, ZILBER, and SIMON, JJ.)

(SIMON, J.) On or about October 15, 2008, Leonor Patricia Storace (“Ms. Storace”), sustained personal injuries as a result of an automobile collision. Storace was treated at A-Plus Medical Rehab Center (“A-Plus Medical”) by Dr. Marc Rogoff (“Dr. Rogoff’), a chiropractic physician, who prescribed x-rays of Storace’s spine and back. Dr. Roberto Rivera-Morales (“Dr. Rivera Morales”), a board-certified radiologist, read and interpreted the x-rays. Ms. Storace assigned her benefits to Roberto Rivera-Morales, M.D. (“Rivera-Morales, M.D.”). These benefits were conferred under an insurance policy, issued by State Farm Mutual Automobile Insurance Company (“State Farm”) to Juan J. Hernandez. State Farm filed an Answer, Affirmative Defenses and Demand for Jury Trial, which denied that the x-rays were reasonable, related or necessary.

“Plaintiff’s Motion for Summary Judgment and Memorandum of Law,” was filed together with the Affidavits of Dr. Rogoff and Dr. Rivera-Morales, in support thereof. Afterwards, a second Affidavit of Dr. Rivera-Morales was filed. In opposition to the Plaintiff’s Motion for Summary Judgment, State Farm filed an Affidavit and Amended Affidavit of Brad S. Chayet, M.D. (“Dr. Chayet”) and an Affidavit and Amended Affidavit of Edward A. Dauer, M.D. (Dr. Dauer”). State Farm also filed Dr. Rogoff’s and Dr. Rivera-Morales’ depositions.

On July 23, 2015, the trial court entered an order denying summary judgment as to necessity, granting summary judgment as to relatedness and reserving ruling as to reasonableness. On August 14, 2015, the trial court granted the Plaintiff’s Motion for Summary Judgment as to reasonableness. Rivera-Morales, M.D. then filed “Plaintiff’s Banayas [sic] Motion for Summary Judgment Regarding Medical Necessity.”¹ Rivera-Morales, M.D. relied upon the Affidavit of Dr. Rogoff as to medical necessity. State Farm filed the depositions of Dr. Rogoff, Ms. Storace, and an Intent to Rely on the Affidavits of Dr. Chayet and Dr. Bret E. Weinstein (“Dr. Weinstein”). On November 2, 2016, the trial court entered its “Order Granting Plaintiff’s Banayas [sic] Motion for Summary Judgment and Final Judgment” as to medical necessity. This Appeal followed.

The standard of review for summary judgment is de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. “Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law.” Id. at 130. “[A] judgment should not be rendered in such proceedings unless the facts are so crystallized that nothing remains but questions of law.” Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2002) [28 Fla. L. Weekly S267a] (citing Shaffran v. Holness, 93 So. 2d 94, 97-98 (Fla.1957)).

The outcome of this appeal depends mainly upon the sufficiency of the various affidavits filed in support of and in opposition to Rivera-Morales, M.D.’s Motions for Summary Judgment. Pursuant to Florida Rule of Civil Procedure 1.510(e):

[s]upporting and opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all documents or parts thereof referred to in an affidavit must be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

“[G]eneral statements in the affidavit, which are framed in terms only of conclusions of law, do not satisfy that burden.” Seinfeld v. Commercial Bank & Trust Co., 405 So. 2d 1039, 1041 (Fla. 3d DCA 1981).

RELATEDNESS AND NECESSITY

Relatedness requires a causal connection. See e.g. United Auto. Ins. Co. v. Seffar, 37 So. 3d 279, 380 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1302a]; State Farm Mut. Ins. Co. v. Universal Medical Center of S. Fla., Inc., 881 So. 2d 557, 559 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D652e]. Whereas,

“Medically necessary” refers to 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:

(a) In accordance with generally accepted standards of medical practice;

(b) Clinically appropriate in terms of type, frequency, extent, site, and duration; and

(c) Not primarily for the convenience of the patient, physician, or other health care provider.

§ 627.732(2), Fla. Stat. (2010).

Dr. Rogoff’s Affidavit

Dr. Rogoff attested that he is a chiropractic physician licensed to practice in Florida; that he performed an initial physical exam of Ms. Storace who stated that she had recently been in an automobile collision; and that she complained of pain in her cervical, thoracic, and lumbar spine; that based on his physical examination he ordered the x-rays in question; and that in his opinion, within a reasonable degree of chiropractic certainty, the taking and reading and interpretation of the x-rays was medically necessary to further diagnose Ms. Storace. Dr. Rogoff further attested that the reading and interpretation of the x-rays by Dr. Rivera-Morales was reasonable, medically necessary, and related to Ms. Storace’s accident and essential to her treatment.

Further, Dr. Rogoff’s affidavit meets the requirements of Rule 1.510(e), it is made upon his personal knowledge. Dr. Rogoff states that he is a chiropractic physician licensed to practice in Florida who performed a physical examination on the insured and he is also competent to testify to the matters stated in the affidavit (the medical necessity of the x-rays reading and interpretation). His affidavit also sets forth facts that would be admissible in evidence, which are relevant and competent as to the issue of whether the x-rays and the reading and interpretation of them were medically necessary.

Additionally, Dr. Rogoff’s deposition explains why x-rays were necessary, i.e. to rule out fracture, normality of posture, curve and general alignment of the spine. He further explained why it was the best practice to always send x-rays to a board-certified radiologist. Rivera-Morales, M.D. presented a prima facie case in regard to relatedness and necessity; therefore, the burden shifted to State Farm on these issues.²

Affidavits of Dr. Chayet and Dr. Weinstein.

The Affidavits of Dr. Chayet and Dr. Weinstein in opposition to Rivera-Morales, M.D.’s Motion for Summary Judgment satisfied Rule 1.510. Both Affidavits are based upon their personal knowledge and provided substantial information regarding their experience. Both attest that they reviewed the insured’s medical records and other pertinent data,³ which they list and attach to their respective affidavits. They both analyzed the data utilizing their experience and knowledge of the medical necessity of x-rays and their relationship to injuries received in automobile accidents. Finally, they both opined that the second interpretation of the x-rays were not medically necessary or related to the insured’s pain, given that Dr. Rogoff immediately performed therapy before obtaining Dr. Rivera-Morales’ interpretations.

State Farm does not dispute the necessity of taking or interpreting the x-rays; rather, State Farm contends that Dr. Rogoff’s sending the x-rays to Dr. Rivers-Morales for his interpretation was unnecessary. In this regard, Dr. Weinstein attests that the “interpretation of the x-rays by Dr. Roberto Rivera-Morales was ‘not’ reasonable, medically necessary, or clinically appropriate.” Further, Dr. Chayet’s Amended Affidavit explained that Rivera-Morales, M.D.’s services of reading the x-rays were neither medically necessary nor related to the insured’s accident because the x-rays were not taken until 12 days after the insured’s accident and were not read by the Provider until 9 days after they were taken, although physical therapy had begun during that entire time. Additionally, Dr. Chayet attested that “if one obtains radiographs to rule out fracture, they need to be reviewed immediately and timely, prior to performing physical therapy.” As such, Dr. Chayet also concludes that “the radiographs were not reasonable or medically reasonable.”

State Farm’s position is strengthened by the depositions of Dr. Rogoff and Ms. Storace. Ms. Storace testified that she recalled Dr. Rogoff looking at the x-rays then telling her that the x-rays showed nothing, then shortly afterwards, she began therapy. Dr. Rogoff testified in his deposition he had no control over Rivera-Morales’ policy to send all x-rays to a board-certified radiologist. Construed in the light most favorable State Farm, as the non-moving party, Dr. Chayet’s and Dr. Weinstein’s Affidavits, together with Dr. Rogoff’s and Ms. Storace’s depositions, create a genuine issue of material fact on the medical necessity and relatedness of Dr. Rivera-Morales’ x-ray interpretations.

REASONABLENESS

Reasonableness may be decided as a matter of law by a proper motion for summary judgment. “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.” Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006) [31 Fla. L. Weekly S171a]. “When the material facts are undisputed, they form a question of law which the trial court is empowered to decide on a motion for summary judgment.” Johnson v. Gulf Life Ins. Co., 429 So. 2d 744, 746 (Fla. 3d DCA 1983).⁴

Dr. Rivero-Morales’ Affidavits

Dr. Rivera-Morales’ Affidavits are based upon his personal knowledge and facts personally known to him. He attests that he routinely interprets x-rays and MRI films for various providers; that he is responsible for billing all of his services and has extensive experience with his billing practices and procedures; that his charges for the relevant CPT codes have been the same since 2007; that he reviewed the statistical data provided by State Farm (a summary of which he attached to his affidavit); that the raw data was already in possession of State Farm and its vendor Mitchell International; that his review of the data revealed the mean and median charges of others in Miami-Dade and Broward Counties; that his charges are well within that range; and that his charges are reasonable because they are indicative of the amounts received from automobile insurance companies in the past and that insurance companies, including State Farm, have determined that his charges are reasonable. Dr. Rivera-Morales also attached copies of explanations of review wherein PIP insurers have allowed his charges in full.

The Court finds that Dr. Rivera-Morales’ Affidavit meets the requirements of Rule 1.510(e). Accordingly, Rivera-Morales, M.D. presented a prima facie case for summary judgment as to the reasonableness of Rivera-Morales, M.D.’s charges. Thus, the burden shifted to State Farm to show that there was a disputed issue of fact regarding reasonableness.

Dr. Dauer’s Affidavit

Dr. Dauer’s Affidavit satisfies the Requirements of Rule 1.510. The affidavit establishes Dr. Dauer’s personal knowledge through his background and experience; the information he reviewed and analyzed; the statutory factors that he considered; the services that he offers in his practice; the payors with which he works; his knowledge of community charges and reimbursements; his own charge for the MRI at issue here; and his opinions based on the analysis of those sources and his personal experience that the Provider’s charges are excessive. Dr. Dauer’s Affidavit provides a detailed basis for his opinion and analysis of the statutory factors supporting his opinion.⁵ The Court finds that Dr. Dauer’s Affidavit is sufficient to create a genuine issue of material fact on the issue of the reasonableness of Rivera-Morales, M.D.’s charges.

When a record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied. See Dellatorre v. Buca, 211 So. 3d 272, 273 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D289c]; Rakusin Law Firm v. Estate of Dennis, 27 So. 3d 166, 167 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D296a].

Accordingly, the “Final Judgment” is REVERSED and REMANDED for resolution of the issues of relatedness, medical necessity and reasonableness. The grant of attorneys’ fees and costs in favor of Rivera-Morales, M.D. is also REVERSED and its Motion for Appellate Attorneys’ Fees is hereby DENIED. State Farm’s Motion for Appellate Attorneys’ Fees is conditionally awarded provided that State Farm ultimately prevails on remand and its offer of judgment satisfies the conditions of Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (1997). (HIRSCH, ZILBER, JJ. concur.)

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¹Rivera-Morales, M.D. relied heavily upon Banyas v. American Mutual Fire Insurance Co., 359 So. 2d 506 (Fla. 1st DCA 1978) and its progeny. At the final hearing, the trial court correctly found that these cases were not relevant because they dealt with determining whether there were preexisting conditions. The instant case involves the situation where a chiropractor starts a treatment before he or she receive films and their interpretations back from a radiologist.

²“Prima facie evidence has been defined as ‘evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but which may be contradicted by other evidence.’” Castleman v. Office of Comptroller, Dep’t of Banking and Fin., Div. of Secs. and Investor Protection, 538 So. 2d 1365, 1367 (Fla. 1st DCA 1989) (citation omitted).

³“An affiant’s personal knowledge may be based on his or her review of the underwriting file.” Progressive Exp. Ins. Co. Camillo, 80 So. 3d 394, 399 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D344a].

⁴Section 627.736(5)(a)1, Florida Statutes (2012) now defines the type of evidence that constitutes a reasonable charge. With these factors, the lower court could properly determine whether summary judgment was appropriate as a matter of law.

⁵Despite State Farm’s failure to elect to use the Medicare Part B fee schedule in its policy, it is not precluded from having an opportunity to litigate the reasonableness of Rivera-Morales, M.D.’s bill under section 627.736(5)(a)(2). See Progressive Select Ins. Co. v. Emergency Physicians of Cent. Fla., LLP, 202 So. 3d 437, 438 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D2145a]. State Farm did not utilize the Medicare B fee schedules as a limitation; rather, State Farm utilized the Medicare B fee schedule as one factor in determining reasonableness of it fees.