27 Fla. L. Weekly Supp. 341a

Online Reference: FLWSUPP 2704BERCInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Trial court erred in finding that affidavit of medical provider’s owner met summary judgment burden on issue of reasonableness of charges where affidavit does not specifically outline methods affiant used to determine that charges were reasonable — Trial court abused discretion by rejecting affidavit of insurer’s expert where affiant explained how his experience led to his opinion on reasonableness of charges and why his experience provided sufficient basis for his opinion — Error to enter summary judgment in favor of provider on reasonableness issue — Trial court also erred in entering summary judgment on issue of timeliness of medical bill where insurer presented evidence to refute timely mailing of bill

UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, v. PREFERRED HEALTH & WELLNESS, INC., a/a/o Jose Bercenas, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 17-243 AP. L.T. Case No. 13-1634 SP 23. May 29, 2019. An appeal for the County Court for Miami-Dade County, Florida. Counsel: Michael J. Neimand, House Counsel, for Appellant. Heather Kolinsky, Law Office of Chad A Barr, P.A. and Kenneth Dorchak, Buchalter, Hoffman & Dorchak, for Appellee.

Cert. DENIED. 44 Fla. L. Weekly 2284b

(Before ALBERTO MILIAN, LOURDES SIMON, and ANDREA R. WOLFSON, JJ.)

(WOLFSON, J.) Jose Barcenas was insured by United Automobile Insurance Company (“United” or “Appellant”) when he sustained injuries in an automobile collision on September 12, 2010. He sought treatment at Preferred Health (“Preferred” or “Appellee”), the Assignee. The Appellant only contested the timely receipt of the October 14, 2010 bill in the amount of $235 and the reasonableness of the amount charged by Appellee. Appellant paid the other bills submitted by Appellee. Only four codes were reduced. Appellant moved for summary judgment on the timeliness issue. The motion was denied. Appellee then moved for summary judgment on the timeliness issue. That motion was granted and is one of the issues raised in this appeal.

The Appellee also moved for summary judgment on the issue of reasonableness. In support of summary judgment, Appellee filed the affidavit of Dr. Ruszkowski, the owner of Preferred, and portions of the trade publication known as Medical Fees in the United States for 2010, along with a list of charges from other providers in the community.

In opposition to the summary judgment on reasonableness Appellant filed the affidavit of Dr. Don Morris. Appellee argued in support of its motion for summary judgment that Dr. Morris does not qualify as an expert regarding the reasonableness of the charges under Florida Statute section 90.702 (the Daubert standard). The trial court granted summary judgment. It found that Appellee met its prima facie burden as to the reasonableness of the charges. It also found that Dr. Morris’ affidavit failed to meet the requirements of Daubert and was therefore inadmissible. The Appellant also raised these issues on appeal.

STANDARD OF REVIEW

As stated in a recent Eleventh Circuit Court opinion, “The standard of review for an order granting summary judgment is de novo, [footnote removed] and the appellate court, like the trial court, must interpret the affidavits and the other evidence submitted in the light most favorable to the non-moving party . . . .” State Farm Mutual Auto. Ins. Co. v. Roberto Rivera-Morales, M.D. a/a/o Joseph, 26 Fla. L. Weekly Supp. 454a (Fla. 11th Cir. Ct. July 17, 2018) (citing Rakusin Law Firm v. Estate of Dennis, 27 So. 3d 166, 166-67 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D296a]). In considering a motion for summary judgment,

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). Thus, a mere “iota” or “scintilla” of evidence is sufficient to preclude the entry of summary judgment. See Ortega v. Citizens Prop. Ins. Corp., 257 So. 3d 1171, 1172 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D2427b] (citing Carnes v. Fender, 936 So. 2d 11, 14 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1383a]).

However, when a trial court rules on a timely and proper objection to an expert’s opinion, including a ruling based on Daubert, the review of that ruling is by the abuse of discretion standard. Booker v. Sumter Cty. Sheriff’s Office, 166 So. 3d. 189 (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. 16-079 AP 01 (Fla. 11th Cir. Ct. July 12, 2018) [27 Fla. L. Weekly Supp. 15a] (citing Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1308a]).

STANDARD FOR REVIEWING AFFIDAVITS

The standard for reviewing affidavits was discussed in the Joseph appellate opinion from another appellate panel of this Court last year:

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 (quoting Holl v. Talcott, 191 So. 2d 40, 45 (Fla. 1966)).

Joseph, 26 Fla. L. Weekly Supp. 454a.

This standard should be applied to each of the affidavits under consideration in the instant case.

ANALYSIS

The reasonableness of the charges was at issue below. Whether or not summary judgment was properly entered on reasonableness depends upon whether the evidence submitted by the parties created a genuine issue of material fact. Each side argues that the other’s evidence was insufficient. The factors that may be considered in this case when determining reasonableness are set forth in the PIP statute.

The Statutory Reasonableness Standard

Section 627.736, Florida Statutes requires PIP insurers to pay for reasonable expenses for medically necessary services. See Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. In 2008, the PIP statute was amended to allow two methods of calculating a reasonable charge for medical services, under section 627.736(5)(a). One method is set forth in subsection (5)(a)(1), which creates a fact-dependent analysis, allowing the consideration of various factors. Geico, 141 So. 3d 147. These factors include usual and customary charges and payments accepted, reimbursement levels in the community, fee schedules, and other relevant information, to determine the reasonableness of fees.¹ “Subsection (5)(a)(2), however, provides an alternative mechanism for determining reasonableness: by reference to the Medicare fee schedules. This provision, adopted in the 2008 amendments, states that an insurer “may limit reimbursement . . . to ‘200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.’ ” Id. (emphasis in original, alteration added.) Section 627.736(5)(a) has been amended somewhat at various times since 2008, but each amendment has continued to utilize two methodologies, one using a formula calculating 200 percent of Medicare to determine reasonableness, and one listing the factors which may be considered to determine reasonableness.

Thus, there are two permissible methods for calculating the reasonableness of charges under the PIP statute: the first method is to use the factors set forth in section 627.736(5)(a)(1) to determine what a reasonable charge would be (subject to challenge by the provider); and the second method is to utilize only the fee schedule payment calculation methodology set forth in section 627.736(5)(a)(2) to conclusively determine what a reasonable charge would be (not subject to challenge by the provider).

In order to utilize the methodology set forth in section 627.736(5)(a)(2), Florida Statutes which determines reasonableness by using a formula based solely upon the Medicare fee schedule, “the insurer must provide notice in the policy of its election to use the fee schedules.” Id. If the election is made, then the calculation of the reasonable amount to pay for medical services is simple, as the statute conclusively provides that the insurer simply pays exactly eighty percent of 200 percent of whatever price is listed on the Medicare Part B Fee Schedule. If the election is not made (as in the instant case), then the section 627.736(5)(a)(2) formula utilizing Medicare Part B schedule amounts cannot be used to conclusively determine a reasonable amount for fees. But, despite an insurer’s “failure to elect to use the fee schedule limitation in its policy, it is not precluded from having an opportunity to litigate the reasonableness of [the providers’] bill under section 627.736(5)(a)1., Florida Statutes (2008).” 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].

In the case under review, the Appellant did not elect to use the methodology set forth in section 627.736(5)(a)(2), so the factors from subsection (5)(a)(1) are to be used for the reasonableness determination. The evidence submitted by each party is reviewed to determine if they have submitted sufficient evidence in support of, or in opposition to, summary judgment.Sufficiency of Appellee’s Evidence Submitted in Support of Summary Judgment

The Appellee argues it satisfied its summary judgment burden: the bills themselves, the affidavit of Dr. Roszkowski and the national average charge guide. The Appellant argues that Appellee’s evidence was insufficient and that the burden never shifted to Appellant to show that there was a disputed issue of fact as to the reasonableness of the charges.

Affidavit of Dr. Ruszkowski

In this case, Appellee submitted an affidavit of Dr. Ruszkowski, its owner, as evidence of the reasonableness of its charges. In attesting to the reasonableness of the charges, Dr. Ruszkowski stated in his affidavit that he is a medical doctor licensed to practice medicine in the State of Florida. He owns his own chiropractic clinic. In paragraph 9, Dr. Ruszkowski stated: “That based upon my experience the charges for each CPT Code represent a reasonable charge within the community and such charges represent Preferred Health Wellness Inc.’s usual and customary charges for services, for which I have received reimbursement without reduction under PIP policies that pay based upon 80% of reasonable charge.”

One of United’s main arguments on appeal is that Ruszkowski’s affidavit was legally insufficient because it is conclusory and not otherwise factually supported. 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).

Dr. Ruszkowski’s affidavit does not specifically outline the methods he utilized to determine that the charges were reasonable. Therefore, the trial court erred in finding that the Ruszkowski affidavit met the summary judgment burden. The affidavit should have specified the sections of the guide that were utilized in Dr. Ruszkowski’s conclusion that the charges were reasonable.

Application of Daubert

The Appellee argued at the summary judgment hearing that Dr. Morris did not qualify as an expert under Daubert. The trial court agreed. Because the trial court made a Daubert ruling on a timely and proper objection to an expert’s opinion, the review of that ruling is by the abuse of discretion standard. See Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1308a]; Baan v. Columbia County, 180 So. 3d 1127, 1131 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D2707a]; Booker v. Sumter Cty. Sheriff’s Office, 166 So, 3d. 189 (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. 16-079 AP 01 (Fla. 11th Cir. Ct. July 12, 2018) [27 Fla. L. Weekly Supp. 15a].

Under Daubert, an expert may be qualified by experience, but must explain the logic and relevance of his opinion. Baan, 180 So. 3d at 1133. In other words, the expert “must explain how [his] experience leads to [his] opinion, why the experience is a sufficient basis for the opinion, and how [his] experience is reliably applied to the facts.” Id. (quoting Charles W. Ehrhardt, 1 Fla. Prac., Florida Evidence § 702.3 (2015 ed.)); see also United Auto. Ins. Co. v. Prof’l Med. Grp., Inc. a/a/o Valientes, 24 Fla. L. Weekly Supp. 20a (Fla. 1lth Cir. Ct. Mar. 21, 2016).

Dr. Morris’s affidavit states his experience, including bill review, and details how he reached his conclusion that the fee was unreasonable. It is apparent, based upon this affidavit, that Dr. Morris has extensive experience, 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 chiropractor and reviewing bills for patients who were injured in automobile accidents, provides him with knowledge regarding the reasonableness for fees and services like the ones at issue in this case. His experience includes working in multiple offices in Miami-Dade County, with the fees accepted from various payers, including Worker’s Compensation, Federal insurance programs, Medicare, Medicaid, managed care contracts, cash at the time of services, and hardship arrangements.

In accordance with Baan, Dr. Morris has explained how his experience led to his opinion on the reasonableness of Appellee’s charges, and why his experience provided him with a sufficient basis for his opinion. Dr. Morris’s affidavit is sufficient under Daubert and Baan and the trial court abused its discretion by rejecting it. Also, if Appellee contended that Dr. Morris did not qualify as an expert pursuant to Daubert, the correct procedure would have been to hold a hearing to determine if he did qualify as an expert, not disqualify his affidavit.

Timeliness of the bill.

Dr. Ruszkowski testified in his deposition that the October 14, 2010 bill was mailed to United by certified mail #7008 1140 3548 4303. Appellant filed the affidavit of Jorge De La O, the person with the most knowledge of United’s post room/mail procedures. He testified that he reviewed the contents that were received with the above green card number and that the contents did not include any billing or treatment notes for October 14, 2010. The statute relied upon by Appellee that they only have to show mailing is not on point. The Appellant presented evidence that the bill was not received. Whether the bill was timely submitted is a fact in controversy.

CONCLUSION

Dr. Morris’s affidavit was sufficient, and the trial court abused its discretion by rejecting it. The affidavit created a genuine issue of material fact, and summary judgment should not have been granted. The trial court also erred by entering summary judgment on the issue of timeliness. The Appellant presented evidence to refute the timely mailing of the bill.

Reversed and Remanded with instructions consistent with this opinion. (MILIAN and SIMON, JJ., concur.)

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¹The version of the statute that was effective from July 7, 2009 to April 23, 2012, a time-period which encompasses the date of the accident in the instant case (and likely the effective date of the insurance contract, which was most likely within one year prior to the accident) stated “[w]ith 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.” § 627.736, Fla. Stat. (2009).