27 Fla. L. Weekly Supp. 601b

Online Reference: FLWSUPP 2707PENAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court erred in rejecting opposing affidavit filed by insurer on basis that affiant relied on Medicare fee schedules, even if insurer failed to elect fee schedule method of reimbursement in PIP policy — Where affidavit explained affiant’s experience, how experience led to his opinion, provided basis for opinion and is reasonably applied to facts; and affidavit is not conclusory in nature, affidavit is sufficient to preclude summary judgment as to reasonableness of charges

UNITED AUTOMOBILE INSURANCE CO., Appellant, v. ACCU-MED DIAGNOSTIC CENTERS, a/a/o Anthony Pena, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 17-418 AP 01. L.T. Case No. 2011-023853 SP 23. August 23, 2019. An appeal from a decision by the County Court in and for Miami-Dade County, Caryn Schwartz, Judge. Hearing on July 17, 2019. Counsel: Michael J. Neimand, for Appellant. G. Bart Billbrough, for Appellee.

(Before DARYL E. TRAWICK, WILLIAM THOMAS, and REEMBERTO DIAZ, JJ.)

(PER CURIAM.) Anthony Pena (Pena) was insured by United Automobile Insurance Company (Appellant, United, or Insurer) when he sustained injuries in an automobile collision on December 13, 2010. Accu-Med Diagnostic Centers (Appellee, Accu-Med, or Provider) performed two MRI scans on March 2, 2011 and billed United $3,600.00. United paid the Provider $1,881.31 and Accu-Med sued. (R. at 9-13, Pl.’s Second Amended Mot. Summ. J. ¶¶ 4-5). On May 11, 2016, Accu-Med filed an amended motion for summary judgment regarding the applicability of the Medicare Part B fee schedule and on the issues of reasonableness, relatedness, and necessity (Summary Judgment). United only contested the reasonableness of the amount charged by Accu-Med, and the parties stipulated that the treatment was related and necessary. As such, Accu-Med filed its second amended motion for summary judgment on the reasonableness issue. In support of summary judgment, Accu-Med filed an affidavit and a deposition transcript of Beatriz Cseko, its office manager, billing and medical records custodian, and corporate representative. (Cseko Affidavit, R. at 514-17; Cseko dep. transcript, R. at 327-76). Accu-Med also filed the deposition transcript of Lizbeth Velasquez (Velasquez), United’s employee and corporate representative. Velasquez testified that she had received the bills for two MRIs of Pena for $1800.00 each. Velasquez indicated it was United’s company policy to reimburse under the fee schedule from the time of the 2008 amendment to the PIP statute and that the Provider was paid only on the basis of 200% of the Medicare Part B fee schedule. (See Supp. R. at A10, Al2, A17, A19).

In opposition to the summary judgment on reasonableness, United Auto filed the Affidavit and Revised Supplemental Affidavit of Edward A. Dauer, M.D. (“Dr. Dauer” or “Dauer”). (R. at 183-96; 254-68).

The trial court granted Plaintiff’s Second Amended Motion for Final Summary Judgment (R. at 745) and entered Final Judgment (R. at 746-47).

Insurer timely appealed.

STANDARD OF REVIEW

The standard of review of an order granting summary judgment is de novo. Shands v. City of Marathon, 261 So. 3d 750 (Fla. 3d DCA 2019) [44 Fla. L. Weekly D164a]. Both the trial court and the appellate court must interpret the affidavits and the other evidence submitted by the parties in the light most favorable to the non-moving party. Rakusin Law Firm v. Estate of Dennis, 27 So. 3d 166, 166-67 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D296a].

In doing so, a court may not adjudge the credibility of the witnesses nor weigh the evidence, since on summary judgment the court is only to determine the admissibility of the evidence, not its persuasiveness. See Univ. of Fla. Bd. of Trustees v. Stone, 92 So. 3d 264, 272 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1476a]; Hernandez v. United Auto Ins. Co., 730 So. 2d 344, 345 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D646a]. In other words, at summary judgment, evidence, including expert witness affidavits, should be examined in order to determine whether issues exist, but the evidence should not be weighed and evaluated for a determination of the merits of the affidavits.

State Farm Mut. Auto. Ins. Co. v. Roberto Rivera-Morales, M.D. a/a/o Syed Ullah, 26 Fla. L. Weekly Supp. 469a (Fla. 11th Cir. Ct. June 20, 2018) (Ullah). “ ‘If the record on appeal reveals the merest possibility of genuine issues of material fact, or even the slightest doubt in this respect, the summary judgment must be reversed.’ ” Ortega v. Citizens Prop. Ins. Corp., 257 So. 3d 1171, 1173 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D2427b] (quoting Piedra v. City of N. Bay Vill., 193 So. 3d 48, 51 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D1087a]). Thus, a mere “iota” or “scintilla” of evidence is sufficient to preclude the entry of summary judgment. See Ortega, 257 So. 3d at 1172 (citing Carnes v. Fender, 936 So. 2d 11, 14 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1383a]).

STANDARD FOR REVIEW OF AFFIDAVITS

The standard for reviewing affidavits was discussed in the Joseph appellate opinion:

Affidavits submitted in support of, or in opposition to, summary judgment must follow the requirements of Florida Rule of Civil Procedure 1.510(e), which provides:

[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 an affidavit which are framed in terms only of conclusions of law do not satisfy a movant’s burden of proving the nonexistence of a genuine material fact issue.” Heitmeyer v. Sasser, 664 So. 2d 358, 360 (Fla. 4th DCA 1995) [21 Fla. L. Weekly D39a] (citing Seinfeld v. Commercial Bank & Trust Co., 405 So. 2d 1039 (Fla. 3d DCA 1981)). However, the evidence offered “need not be in the exact form, or cover all the preliminaries, predicates, and details which would be required of a witness, particularly an expert witness, if he were on the stand at trial.” OneWest Bank, 173 So. 3d at 1013-14 [One West Bank, FSB v. Jasinski, 173 So. 3d 1009 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D1389a]] (quoting Holl v. Talcott, 191 So. 2d 40, 45 (Fla. 1966)).

State Farm Mut. Auto. Ins. Co. v. Roberto Rivera-Morales, MD., a/a/o Joseph, 26 Fla. L. Weekly Supp. 454a (Fla. 11th Cir. Ct. July 17, 2018) (Joseph).

On a motion for summary judgment, a movant’s affidavit cannot be conclusory in law or fact. See, e.g., Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So. 2d 174 (Fla. 3d DCA 1971) (affidavit in support of summary judgment may not be based on factual conclusions or conclusions of law); Seinfeld v. Commercial Bank & Trust Co., 405 So. 2d 1039 (Fla. 3d DCA 1981) (general statements, contained in an affidavit in support of motion for summary judgment and which are framed in terms only of conclusions of law, do not satisfy movant’s burden of establishing the nonexistence of a genuine issue of material fact).

Provider’s Summary Judgment Evidence

Provider submitted its medical bills as prima facie evidence of their reasonableness along with the testimony of its office manager. The bills themselves may satisfy a provider’s summary judgment burden, but the bills are admissible into evidence without the need of expert testimony as to reasonableness. As such, the submission by the medical provider here of the bills and the testimony or affidavit of its lay witness meets its summary judgment burden, so long as the deposition or affidavit is otherwise sufficient.

The following are excerpts from the Provider’s office manager’s affidavit to establish the reasonableness of its bill:

6. At all material times hereto I personally determined and reviewed the amounts charged by ACCU-MED and personally reviewed the amounts ACCU-MED received as payment. ACCU-MED’s usual and customary charge for the CPT Codes at issue in this case for the subject time period is the billed amounts indicated on the attached itemized billing ledger and submitted Health Insurance Claim Form [HCFA-1500]. Specifically, ACCU-MED’s usual and customary charge for CPT Codes 72148 and 73721 during 2011 was $1800.00 per MRI as reflected on the billing ledger and HCFA-1500. The price charged for each of the billed MRIs were set prior to the year in which the subject MRI’s were rendered to the Patient and the charge billed for the aforesaid MRI’s were the same amounts that were billed to all insurers and patients during the year 2011. A true and correct copy of the billing ledger is attached hereto and incorporated herein as Exhibit “D”. See also HCFA-1500 attached as Exhibit “C”.

7. My employment at ACCU-MED requires that I routinely review payments from insurers, including PIP insurance companies, to ensure that proper payment had been received and to do so I routinely review the Explanations of Benefits/Explanations of Review. It is common knowledge that Explanations of Benefits (EOBs) routinely show what an insurer opines or concludes to be a reasonable charge or expense for the treatments, services and supplies billed by a medical provider. During my time in my present position with ACCU-MED I have personally reviewed hundreds to thousands of explanations of benefits. Thereby, I have become familiar with and personally observed the amounts reimbursed to ACCU-MED by insurers as a result of the time that I have spent working in my present position and I have personal knowledge of reimbursement trends for ACCU-MED. Proper payment to ACCU-MED would be payment without reduction of the submitted charges unless otherwise authorized by statute. As a result of my review and explanations of review, and present tenure since my job requires that I bill the insurer(s) and collect payment for such services on behalf of ACCU-MED, I have personal knowledge and personally observed that for the subject CPT codes (72148 and 73721) payment was received by ACCU-MED from PIP insurers at 80% without any additional reduction during the year 2011. Thus, based on my job experience and first-hand observations I have personal knowledge of what ACCU-MED charges and what ACCU-MED has been reimbursed by PIP carriers whose policies require them to pay based on a “reasonable charge” standard. Consistent with the above, I observed and have personal knowledge that during 2011 (the time period in question) there were numerous PIP insurers paying claims in Florida and many insurers that did not amend their policy to clearly elect to pay 200% of Medicare reimbursed ACCU-MED at 80% of its submitted charges for the subject MRI’s, including but not limited to, the following PIP insurers: State Farm, Progressive, Geico, Liberty Mutual, and Gainsco, amongst others.

8. The charges at issue were set prior to ACCU-MED opening in 2010 and are reviewed annually. When annually reviewing and establishing the prices various factors were and are continuously considered, including but not limited to, checking with other medical providers in the area and comparing prices via telephone; along with continuously personally reviewing EOBs received from Insurance Companies for charges submitted by ACCU-MED and other medical providers in Plaintiff’s geographical community; along with reviewing authoritative fee and coding publication(s). Per my phone calls to other medical facilities in Plaintiff’s geographical community when reviewing and establishing pricing, along with my review of EOBs, I have personally observed that there are medical providers in Plaintiff’s geographical community that charge more than ACCU-MED for the same MRIs at issue in this case during the year 2011. Additionally, when reviewing and establishing pricing, I have referenced authoritative publication(s), such as the Ingenix Fee and Coding Analyzer publication for the year in which the subject services were rendered. To the best of my knowledge, Ingenex is a database compiled from billings that are annually submitted by medical facilities to insurers from various locations and are analyzed by Ingenex to provide a range of usual and customary charges for specific medical services, treatment and supplies in a specific geographical region. Based upon my personal review and observation of simply comparing ACCU-MED’s charges to the listed amounts in the aforesaid publication, ACCU-MED’s charges for each of the subject CPT Codes (72148 and 73721) fall within the acceptable range of what other providers charged for the same MRIs in ACCU-MED’s geographical community (Miami, Florida-Miami Dade County) during the year 2011.

Affidavit of Beatriz Cseko at 515-16.

The affidavit of Cesko (the office manager) was sufficient to establish the bill’s reasonableness for summary judgment purposes. The affidavit adheres to the legal requirements for an affidavit. It sets forth her qualifications, bases for her opinion, and is not conclusory. The trial court correctly admitted the Provider’s evidence and correctly found it met its burden concerning its Motion for Summary Judgment.

Insurer’s Summary Judgment Evidence

The following are excerpts from the Affidavit of the Insurer’s expert, Edward A. Dauer, M.D. and a Revised/Supplemental Affidavit of Edward A. Dauer, M.D., which were submitted in opposition to the Provider’s Motion for Summary Judgment:* * *

4. I am a medical doctor licensed in the State of Florida since 1976. My license number is ME0026873. My license has never been disciplined or restricted by any jurisdiction. I am Board Certified in Diagnostic Radiology by the American Board of Radiology.

5. Attached as Exhibit “A” to this Affidavit and incorporated within, is a true and correct copy of my Curriculum Vitae, reflecting my education and professional experience. My current positions include: Medical Director of Radiology at Florida Medical Center Hospital in Lauderdale Lakes, a 459 bed acute care hospital; managing member of Broward P.E.T. Imaging Center, L.L.C.; member of the medical teaching staff at Mount Sinai Medical Center, Miami Beach; and Research Associate Professor of Biomedical Engineering, Radiology, and Family medicine at the University of Miami (Florida).

8. I also conduct numerous Peer Reviews which provide to me the opportunity to review the medical records of other physicians and their patients. This activity allows me to routinely review the charges and reimbursements for the medical services at issue therein. In the course of providing/conducting Peer Reviews I have therefore reviewed, considered, and evaluated the medical charges and medical reimbursements of hundreds of persons, not my patients, who were injured in automobile accidents and received medical treatment, including x-rays, MRIs and CT scans.

* * *

11. Some of the documents I relied upon in addition to my knowledge, experience, and other items mentioned in this Affidavit include the approximately 45 contracts that BPET has with insurance companies, including governmental, Worker’s Compensation, HMO/PPO, and other third-party payers that rely on Medicare as the basis for determining reimbursement. I also currently provide services to PIP patients (i.e., patients who are receiving services at my facility due to injuries sustained as a result of a motor vehicle accident, and his charges thus are being paid by their automobile insurance companies, generally), and did so in the year 2011. I always have accepted approximately 200% of the amount(s) allowed by Medicare as reimbursement for my services. . . .

* * *

15. I have reviewed the medical records for the medical care provided to Anthony Pena by Accu-Med Diagnostic Centers in connection with the motor vehicle accident which occurred on 12/13/2010. This included the Explanation of Review, the written radiology reports interpreted by Ronald I. Landau, M.D., and the HCFA 1500 billing form. Attached as Composite Exhibit “E” to this affidavit are copies of the medical records and documentation I reviewed to formulate my opinion regarding the medical treatment and charge at issue in this lawsuit.

16. It is my opinion, as a medical doctor familiar with the range and rate of charges for radiological services provided in the area to patients by credentialed and experienced diagnostic centers and hospitals, that the charges to be at issue by Accu-Med Diagnostic Centers for date of service 3/2/2011 were not reasonable.

17. It is my opinion, as a medical doctor familiar with the range and rate of charges for radiological services provided in the area to patients by credentialed and experienced diagnostic centers and hospitals, that the charges billed by Accu-Med Diagnostic Centers for date of service 3/2/2011 to patient Anthony Pena are excessive and are significantly higher than reasonable charges for the diagnostic services allegedly provided to Anthony Pena for date of service 3/2/2011.

Affidavit of Edward A. Dauer, M.D. at 184-87. (Emphasis in original).* * *

20. Putting these factors into context with regard to Plaintiff’s charges as it relates to PIP, it is clear that any provider can charge any amount for any services and consider that amount to be its “usual and customary” charge. However, this is very subjective and must be considered with “payments accepted by the provider involved in the dispute” in order to properly analyze this part of the consideration. Considered together, the provider subjective charges must be in line with what the provider regularly accepts as payment in order for it to be truly considered usual and customary. Thus, if the provider’s charges are not in line with what the provider regularly accepts, then they cannot be objectively considered “usual and customary.”

21. Next, in determining what constitutes a reasonable charge, the PIP statute directs us to give consideration to “reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages.” Medicare and workers compensation are examples of federal and state fee schedules. Medicare is the second largest payer of medical expenses in the Country, but only when compared to all private health insurance companies combined; otherwise, Medicare is the single largest payor of medical expenses in the Country. [Footnote omitted] As such, the Medicare Fee Schedule should be the polestar of what can be considered a reasonable charge and is commonly used by payors such as commercial/private insurers in creating their respective fee schedules. Private health insurance makes up a substantial part of the medical market and assumedly is what is referred to above as “other insurance coverages” when considering a reasonable charge in PIP. Combined, the amounts paid by Medicare and private commercial health insurers, pay the vast majority of medical expenses and thus represent “reimbursement levels in the community,” while also reflecting those payors’ determination of a reasonable charge.

* * *

38. To summarize, based upon my extensive experience as detailed above with reimbursement procedures and rates by federal, state, and other third-party payors, the Accu-Med Diagnostic Centers charges of $1800 each for CPT codes 72148 and 73721 rendered in Miami-Dade County in 2011 are NOT reasonable, as they bear no relation to the amounts usually and customarily recognized and accepted in Miami-Dade County by MRI providers for their services. Despite the fact that Plaintiff may occasionally receive payment at the full amount of its charge, that alone does not render the subject charge “reasonable.” . . .

Revised/Supplemental Affidavit of Edward A. Dauer, M.D. at 260-61, 266-67.

To the extent that the trial court rejected Dr. Dauer’s opinion as to reasonableness based upon his reliance on Medicare fee schedules, such rejection was error. The Eleventh Circuit Appellate Panel decision, State Farm Mutual Automobile Insurance Co. v. Health & Wellness Associates, Inc. a/a/o Scott, 25 Fla. L. Weekly Supp. 220a (Fla. 11th Cir. Ct. May 24, 2017), indicates that it was not error for an expert to reference Medicare fee schedule payment amounts, even when the insurance company failed to elect the reimbursement method set forth in section 627.736(5)(a), Florida Statutes.¹

In accordance with the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (Daubert) standard, Dr. Dauer explained how his experience led to his opinion on the reasonableness of the Provider’s charges, why his experience provided him with a sufficient basis for his opinion, and how his experience is reliably applied to the facts.² Additionally, his affidavit is not conclusory in nature, because his affidavit explains how his knowledge and experience, including review of bills for patients injured in automobile accidents, plus discussions with his peers and colleagues, provides him with knowledge regarding the reasonableness of fees for services like the ones at issue.

Interpreting Dr. Dauer’s affidavit in the light most favorable to United, the non-moving party, it provides sufficient evidence necessary to survive summary judgment.

As such, this matter is:

REVERSED and REMANDED for proceedings consistent with this Opinion.

Appellant’s motion for appellate attorney’s fees is conditionally GRANTED.

__________________

¹Section 627.736(5)(a)2. allows 80 percent of 200 percent of the Medicare fee schedule amount to be conclusively determined to be the reasonable amount of payment when an insurance provider has made a proper election in its policy.

²Under 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 v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (Frye), not Daubert, was the appropriate test in Florida.). Thus, we apply the Daubert standard.