27 Fla. L. Weekly Supp. 223a

Online Reference: FLWSUPP 2703JAMEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court did not err in finding that medical provider met initial burden on summary judgment on issue of reasonableness of charges for reading MRI — Affidavit of medical provider’s operations and billing manager in support of motion for summary judgment is not deficient for failing to attach documents to support her conclusion that provider has been reimbursed by PIP insurers at 80% of billed amount where testimony was based on personal knowledge that affiant would necessarily possess in her position — No abuse of discretion in ruling that opposing affidavit filed by insurer was insufficient to preclude summary judgment where “facts and data” relied upon in affidavit are limited to self-serving and anecdotal statements — Insurer’s belated constitutional challenge to section 90.702, arguing that it was denied procedural due process because trial court applied Daubert standard rather than Frye standard, is rejected where there is no fundamental error since insurer was not prevented from presenting expert witness’s testimony; it presented testimony and that testimony, once presented, was rejected by trial court

UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. MIAMI DADE COUNTY MRI, CORPORATION, a/a/o Jawanda James, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2017-26-AP-01 (consolidated with 2017-329-AP-01). L.T. Case No. 2012-14504-SP-23. April 26, 2019. An appeal from the County Court in and for Miami-Dade County. Spencer Multack, County Court Judge. Counsel: Michael J. Neimand, Miami, for Appellant. Kenneth J. Dorchak, Buchalter, Hoffman & Dorchak, P.A., North Miami; Chad A. Barr, and Heather M. Kolinsky, Chad & Barr, P.A, Altamonte Springs, for Appellee.

(Before HERSCH, SAYFIE, and FRANCIS, JJ.)

(FRANCIS, J.) We review the trial court’s final order granting summary judgment in favor of Appellee, Miami Dade County MRI, Corporation (“Miami MRI”). We have jurisdiction. See Article V, (5)(b), Fla. Const.; § 26.012, Fla. Stat. (2019). For the reasons that follow, we affirm.

FACTUAL BACKGROUND

This case is a mirror image of many others involving these litigants, the only difference here being the name of the injured party, and details of the accident that brought her to Miami MRI. For purposes of this appeal, the most salient facts are as follows: after being injured in a car crash, the named insured assigned her rights to benefits to Miami MRI, and the latter treated her for her injuries. Miami MRI then submitted its bills to United Automobile Insurance Company (“United”), which paid only a portion of the bills, specifically two hundred percent of Medicare at eighty percent reimbursement. It’s undisputed that United failed to elect the permissive fee schedule in its policy. At issue is the reading of x-rays at Miami MRI that were performed at other facilities.

Miami MRI eventually sued to recover the difference between the submitted and reimbursed amounts. And the parties stipulated that the medical bills were related to the accident, and medically necessary, leaving only the issue of reasonableness to be determined. The case proceeded to summary judgment, where both parties submitted dueling affidavits in support of their respective positions: Dr. Edward A. Dauer, for United, and Llina Milian, for Miami MRI.

Milian, Miami MRI’s corporate representative, operations and billing manager, averred that the submitted charges for each service was Miami MRI’s usual and customary charge billed to patients and insurance companies. Based on her personal knowledge, the CPT codes at issue had been reimbursed without reduction for the year at issue, including by United. And these charges remained unchanged since 2006 when Milian first started working at Miami MRI; insurers that had failed to adopt the permissive fee schedule continued to pay Miami MRI at eighty percent without reduction — United included. United had earlier admitted in its requests for admissions that it had received bills from other medical providers for the same CPT codes that were either the same or greater than the amount billed by Miami MRI.

Dr. Dauer countered that Miami MRI’s charges were unreasonable, relying, inter alia, on his own charges, and those of the Medicare fee schedules. Specifically, he testified that he believed that a range of between seventy to two hundred percent of the Medicare fee schedule was a reasonable rate for charges for the interpretation of the x-rays at issue. And that any charge in excess of two hundred percent of Medicare was per se unreasonable.

Miami MRI opposed United’s motion for summary judgment, challenging Dr. Dauer’s affidavit pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), on the basis that his affidavit was inadmissible as expert testimony for relying upon unreliable methodology, and because it failed to create a genuine issue of material fact as to reasonableness of Miami MRI’s charges. All Dr. Dauer’s affidavit did, according to Miami MRI, was simply point out his own low charges, and those of the Medicare fee schedules; but Miami MRI’s bill did not have to be the lowest in order to be reasonable.

United countered, among other things, that Miami MRI failed to meet its burden because Milian’s affidavit was conclusory: it did not attach Explanations of Benefits (“EOBs”) or any proof to establish that Miami MRI was reimbursed at the amount it charged. It also contended that Dr. Dauer satisfied Daubert.

The trial court ultimately ruled in Miami MRI’s favor, taking judicial notice of a trade document submitted as part of its case. The trial court used that document to compare Miami MRI’s charges to those in the publication, and found that Miami MRI’s charges were “in the range of customary charges for like services.” Based upon all the evidence submitted, the trial court found that Miami MRI had satisfied its initial burden on summary judgment. Dr. Dauer’s affidavit, on the other hand, failed to create a genuine issue of material fact; the court explained:

The rational for Dr. Dauer’s opinion in this matter is based on his own experience operating his own clinic, his opinion of Medicare reimbursements, and his understanding of Florida Statute section 627.736. The Court finds the relied on ‘facts and data’ to be insufficient to render an opinion on the reasonableness of the Plaintiff’s charge, as the facts and data are limited to self-serving and anecdotal statements.

The trial court concluded that the mere existence of Medicare and other rates that were lower than actual charges in the community did not create an issue of fact on reasonableness. This timely appeal follows.

ANALYSIS

The issue on appeal is whether the trial court erred in granting final summary judgment in Miami MRI’s favor on the issue of reasonableness. We review this final order de novo. Volusia Cnty. v. Aberdeen at Ormand Bch, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. But review only for an abuse of discretion, the trial court’s specific decision to exclude Dr. Dauer’s affidavit. See, e.g., Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109, 1110 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1308a] (applying this mixed standard).

We conclude that the trial court properly granted summary judgment because Miami MRI carried its burden of demonstrating the non-existence of any material facts, and United, once the burden shifted, failed to come forward with competent evidence to establish that any material facts existed. See Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 782-83 (Fla. 1965), and Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a] (both discussing the burden-shifting model in summary judgment proceedings).

Miami MRI provided sufficient evidence to prove reasonableness: it’s medical bills, Milian’s affidavit, and the trade publication. With respect to its medical bills, prior panels of this appellate body have ruled they establish “prima facie evidence of the reasonableness of [a provider’s] charges.” State Farm v. Rivera-Morales a/a/o Eugenia Sambolin, 26 Fla. L. Weekly Supp. 704a (Fla. 11th Cir. Ct. (Appellate) Aug. 21, 2018); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, 25 Fla. L. Weekly Supp. 857a (Fla. 11th Cir. Ct. (Appellate) Sept. 28, 2017) (“a prima facie showing of reasonableness can be made by merely presenting the medical bills with testimony that services were provided to the patient.”). Other panels, while not going as far, have ruled that lay testimony may be used to establish reasonableness of the medical bills. See State Farm Mut. Auto. Ins. Co. v. Roberto-Morales, M.D. a/a/o Syed Ullah, 26 Fla. L. Weekly Supp. 469a (Fla. 11th Cir. Ct. (Appellate) June 20, 2018). The better approach appears to be latter. See State Farm Mut. Auto. Ins. Co. v. Bowling, 81 So. 3d 538, 540 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D379a] (concluding that the plaintiff met the burden of establishing reasonableness through his own testimony and a one-page summary of bills). Here, United’s submission of its medical bills coupled with Milian’s testimony were enough to establish prima facie evidence of the reasonableness of Miami MRI’s charges.

Milian’s affidavit was also sufficient on its own for these purposes, too. She averred being personally aware of what insurers pay as reimbursement, knowing what the community charges were, and she averred that what Miami MRI charged was usual and customary. See 627.736(5)(a)(1), Fla. State. (2012) (considerations in determining reasonableness for a charge may be given to “evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community [among others].”); State Farm Mut. Auto. Ins. Co. v. Fla. Wellness Rehab. Ctr., Inc., 23 Fla. L. Weekly Supp. 88a (Fla. 17th Cir. Ct. (Appellate) June 3, 2015) (billing rep’s affidavit or testimony regarding provider’s charges will satisfy the initial burden on summary judgment).

United, however, appears to take issue with Milian’s apparent failure to attach “all the explanations of review and explanations of benefits that supported [her] conclusion that it was reimbursed by PIP insurers at 80% of what it billed[,]” rendering her affidavit conclusory and insufficient to shift the burden to United. (Initial Br. 24-25.)

We disagree. As corporate representative, operations and billing manager, Milian possessed the relevant knowledge to make her affidavit sufficient, and she averred in her affidavit that her testimony was based on personal knowledge. See Fla. R. Civ. P. 1.510(e) (supporting affidavits “shall be made on personal knowledge . . . .”); Alvarez v. Fla. Ins. Guar. Ass’n, 661 So. 2d 1230, 1232 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2214a] (affidavit need not state it’s based on personal knowledge where affiant is shown to be in a position where he would necessarily possess such knowledge). An integral part of Milian’s job as billing manager was reviewing the reimbursements from other insurers, necessarily requiring her to review the explanation of benefits to see if the reimbursements were proper. And in that role, she determined that payments from other automobile insurers were not reduced for the same CPT codes for the year the services were rendered. In any event, requiring Milian to attach every EOB misconstrues the law in this district. Alvarez, 661 So. 2d at 1232. Instead, it was sufficient for purposes of carrying Miami MRI’s initial burden that Milian’s affidavit, made in her professional capacity, averred to the matters outlined above.

The trial court had ample evidence to conclude that Miami MRI met its initial burden on summary judgment. Such a conclusion was further bolstered by the fact that the trade publication upon which the trial court relied also placed Miami MRI’s charges within the reasonable range of charges for the area, and United’s own admission in its responses to requests for admissions, that other medical providers were charging either the same or more than Miami MRI, ostensibly placed Miami MRI’s charges within the range of customary charges in the community. See § 90.803(17), Fla. Stat. (2012) (permitting the use of compilations as evidence, such as the trade publication relied upon by Miami MRI, as an exception to hearsay).

Having met its burden, the burden then shifted to United to provide competent evidence establishing that material facts existed. See Haley, 175 So. 2d at 782-83; Sierra, 767 So. 2d at 525. United purported to do this via Dr. Dauer’s affidavit, which the court found insufficient.

Because of the discretion imbued in the trial court, it cannot be said that the court’s ruling was “arbitrary, fanciful, or unreasonable” or that “no reasonable man would take the view adopted by the trial court.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1990) (outlining what it means for a court to have abused its discretion). Reasonable persons — including trial judges, as well as judges on this Eleventh Judicial Circuit appellate bench — have differed as to the propriety of similar rulings made by other trial courts in other cases on this very issue. To be sure, the parties submitted supplemental authority from this circuit’s appellate body supporting both of their respective positions that were decided by different appellate panels.¹ At oral argument, this author asked whether the parties could similarly provide cases supporting their respective positions from our sister jurisdiction, the Seventeenth Judicial Circuit. But counsel for United candidly admitted that the rulings there were almost unanimously against his client, and that after about the sixth “per curiam affirmed,” United stopped litigating in that circuit.² Because we conclude that reasonable minds can, and have, differed on whether Dr. Dauer’s affidavit is sufficient, it cannot be said that the trial court abused its discretion in ruling the way it did.

Finally, United makes a belated constitutional challenge to section 90.702, Florida Statutes — the law in effect at the time the trial court made its ruling — which had adopted the Daubert test for qualifications for testifying experts. According to United, it was denied its procedural due process right to call its only witness, Dr. Dauer, when the trial court ruled he didn’t satisfy Daubert. (Initial Br. 29-32.)

At the time of the proceedings below, it was an open question whether the courts were required to follow the standard in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) or the one in Daubert. During the pendency of this appeal, our supreme court ruled Frye was the appropriate test. See DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018) [43 Fla. L. Weekly S459a].

Because United failed to preserve its constitutional challenge below, to benefit from DeLisle, it must demonstrate that it meets an exception to the preservation requirement — it must show that the trial court’s application of Daubert was fundamental error. See Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992) (holding that any decision of the supreme court announcing a new rule of law or applying an established rule of law to a new or different factual situation, must be given retrospective application in every case pending on direct review or not yet final; “[t]o benefit from the change in the law, the defendant must have timely objected at trial if an objection was required to preserve the issue for appellate review.”) (Emphasis added); Clay v. Prudential Ins. Co. of Am., 670 So. 2d 1153, 1154 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D809b] (noting that fundamental error is an exception to the preservation requirement).

It’s a high bar, the focus being on the public’s perception and confidence in the judicial process. See Hagan v. Sun Bank of Mid-Fla., NA., 666 So. 2d 580, 584 (Fla. 2d DCA 1996) [21 Fla. L. Weekly D212a] (relief is granted for fundamental error in civil cases “because the public’s confidence in our system of justice would be seriously weakened if the courts failed to give relief as a matter of grace for certain, very limited and serious mistakes.”). Denial of one’s procedural due process right rises to the level of fundamental error. See Henderson v. Lyons, 93 So. 2d 399, 401 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1575a].

We reject United’s belated constitutional challenge because despite its argument to the contrary, there was no procedural due process violation. Rather, United had the opportunity to, and did, present its witness, Dr. Dauer, whose testimony once presented was rejected by the trial court as insufficient as a matter of law. We see nothing in the trial court’s actions that could be construed as precluding United from putting forth its defense. It was merely rejected once presented. So there was no due process violation, and thus, no fundamental error. And because there is no fundamental error, United is precluded from raising a facial challenge to the constitutionality of section 90.702, Florida Statutes for the first time on appeal. Finding no error in the final judgement, we affirm the order on appeal. (HERSCH and SAYFIE, JJ., concur.)

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¹See Appellant’s Notice of Supplemental Authority (Notices 1-10), and Appellee’s Notice of Supplemental Authority.

²A review of the Eleventh Judicial Circuit appellate cases — both those cited in the parties’ briefs and those submitted as part of supplemental authority — represents a huge chasm in our circuit court appellate precedent: different results being reached by different appellate panels on the same issue. The result of all of this is that “a litigant wins or loses based upon the predilections of the individual judges who heard the trial and appeal and not upon a coherent body of law that applies to all litigants.” Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 253 So. 3d 36, 40 (Fla. 3rd DCA 2017) [42 Fla. L. Weekly D2503a] (Logue, J., concurring and dissenting in part). The intra-circuit split creates great uncertainty in the lower courts and among litigants. While the true cost of such uncertainty is not known, at a minimum it undoubtedly increases litigation in an area of law — PIP — that was intended to swiftly resolve claims. Under the current rules, a remedy to all of this is not immediately apparent. Unlike our supreme court that may exercise jurisdiction to resolve conflicting district court of appeal opinions, our district courts that may sit en banc to resolve internal conflicts, or our county courts that may certify issues of great public importance to the district courts, there is no similar procedure in the circuit courts.

One solution, proposed by Judge Logue in Hallandale Open MRI, is expanding second-tier certiorari relief, since the disparate treatment of similarly situated litigants “constitutes a departure from the most essential requirements of law: equality before the law[,]” resulting in a miscarriage of justice. 253 So. 3d at 41-42. The risks associated with expanding certiorari relief, of course, include “invit[ing] certiorari review of a large number of appellate decisions issued by circuit courts[,]” Stilson v. Allstate Ins. Co., 692 So. 2d 979, 983 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D1088b] (Altenbernd, J.), as well as increasing the risks of litigants having second-bites of the apple. See Combs v. State, 436 So. 2d 93 (Fla. 1983), and Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995) [20 Fla. L. Weekly S318a] (both representing bookend discussions on when to issue the writ to avoid second appeals). For that reason, when analyzing the propriety of expanding cert review to other circumstances not relevant here, then-Judge Altenbernd suggested that the better approach would be for the county courts to use the existing discretion under section 34.017(1), Florida Statutes, to certify questions of great public importance to the DCAs. Stilson, 692 So. 2d at 983. It’s an approach Judge Logue dismissed as inadequate because of Judge Altenbernd’s recognition that “there may never be ‘clearly established principles of law’ governing a wide array of county court issues, including PIP issues.” Hallandale MRI, 253 So. 3d 36 at 47 (citing Stilson, 692 So. 2d at 983, and Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683 (Fla. 2000) [25 Fla. L. Weekly S1103a] (which cited Stilson)).

Whatever the path — certification, expanding second-tier certiorari review, or perhaps an administrative solution — it’s clear that the current situation is untenable due to its impact on our justice system, the community, and the litigants themselves. I leave it to our policy makers and higher courts to instruct on the way forward.