27 Fla. L. Weekly Supp. 221a
Online Reference: FLWSUPP 2703DURAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court did not abuse discretion in entering summary judgment in favor of medical provider on issue of reasonableness of charges where opposing affidavit filed by insurer was conclusory and unsupported by facts or data, and affiant was not qualified to render opinion on reasonableness issue as expert or as lay witness — Trial court properly found that mere fact that Medicare, HMO, and PPO rates are less than amount billed by provider does not create factual issue as to reasonableness of charges
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MIAMI DADE COUNTY MRI CORPORATION, a/a/o Erlin Duran, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2016-000450 AP-01. L.T. Case No. 2012-013550-SP-23. March 22, 2019. An appeal from the County Court in and for Miami Dade County, Florida, Spencer Multack, Judge. Counsel: Michael J. Neimand, United Auto House Counsel, Miami, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, Esq., P.A., Miami, and Kenneth J. Dorchak, Co-counsel, for Appellee.
[Rehearing denied 6/21/2019.]
(Before HIRSCH, MILIAN AND ZILBER, JJ.)
(PER CURIAM.) The decision of the county court is per curiam affirmed.
This case arises out of a motor vehicle accident which occurred in 2010. The insured, Erlin Duran, sustained injuries from the accident for which he sought medical care. The insured made a claim for personal injury protection (PIP) benefits under his insurance contract with United Automobile Insurance Company (United Auto). The Appellee, Miami Dade County MRI, provided medical services and X-rays under an assignment of benefits, and billed United Auto for $246.60. Without notice of an election of payment method, United Auto limited its reimbursement to the Medicare Fee Schedule and paid the medical provider $97.39.1
The medical provider filed suit on July 9, 2012, to recover the unpaid balance of the charges for medical services. In its answer to the complaint, United Auto disputed the reasonableness of the medical charges. On May 5, 2016, the medical provider filed its motion for summary judgment together with the affidavit of its operations manager, Llina Milian. In support of its motion for summary judgment, the medical provider filed the Appellant’s answers to the interrogatories that listed the charges for the same medical services by other medical providers in the community, demonstrating that the subject charges were within the standard range of prices. Although the Appellant did not file a formal response in opposition to the motion for summary judgment, Appellant contested the reasonableness of the charges by its filing of the affidavit of Denorah Lang, its adjuster. Ms. Lang’s affidavit concluded that other medical providers accepted lower amounts than the Appellee, but did not substantiate this with tangible proof.
On November 10, 2016, the trial court convened its hearing on the medical provider’s motion for summary judgment. At hearing, the medical provider’s tender of competent evidence met the requisite burden of proof for summary judgment. Holl v. Talcott, 191 So. 2d 40, 41 (Fla. 1966); Frost v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D1575b]. Essentially, the affidavit of Ms. Milian demonstrated that the subject medical charges were usual and customary in the medical community based on claim examples and review of a significant quantity of explanations of benefit. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).
This affiant’s conclusion was supported by a comparison of the provider’s charges to those in the authoritative text, Medical Fees in the United States, which showed its charges were in the range of charges for like medical services. This evidence was supplemented by the filing of the insurer’s answers to interrogatories which further indicated that the medical provider’s charges for the specific medical services were within the range of amounts charged in the medical community. Collectively, the medical provider satisfied its burden of proof which then shifted to the Appellant. Wells Fargo v. Bilecki, 192 So. 3d 559 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1179a].
The Appellant relied on Ms. Lang’s affidavit, which concluded that medical charges were not reasonable. Although Ms. Lang’s affidavit recited the statutory method of review, she failed to present data that would establish the existence of an issue of material fact. Carbonell v. BellSouth Telecommunications, Inc., 675 So. 2d 705, 706 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1476a]. Instead, Ms. Lang’s affidavit makes a conclusory, generalized statement that, “I am familiar with the fact that Miami Dade County MRI accepted reimbursements in 2010 from patients covered by HMOs, PPOs, cash patients, as well as Medicare and the amounts accepted would have been far less than the amounts charged in this case.”
On its face, the affiant’s statement is mere conjecture, as the affiant did not provide any proof to support her statement. Carbonell v. BellSouth Telecommunications, Inc., 675 So. 2d 705, 706 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1476a]. The affiant’s speculation that the acceptance of payments by patients with certain medical coverages means that the medical provider was reimbursed at a reduced rate is faulty at best. Ms. Lang’s affidavit is deficient because it did not present a factual issue, and therefore had no probative value. Johnson v. Studstill, 71 So. 2d 251 (Fla. 1954), Enes v. Baker, 58 So. 2d 551 (Fla. 1952). To defeat the medical provider’s motion for summary judgment, it is not sufficient merely to assert that an issue of material fact exists. Harvey Bldg. Inc., v. Haley, 175 So. 2d 780 (Fla. 1965). In summary, Ms. Lang’s affidavit was conclusory, and unsupported by facts or data. Progressive Express Ins. Co. v. Camillo, 80 So. 3d 394, 399 (Fla. 4th DCA 2013) [37 Fla. L. Weekly D344a].
The trial court conducted a thorough and extensive inquiry and analysis before reaching its conclusion. First, the lower court noted that the Appellant did not tender Ms. Lang as an expert witness, which deprived the medical provider of the opportunity to object in a timely manner. Feliciano-Hill v. Principi, 439 F. 3d 18, 24 (1st Cir. 2006); Alfred v. Caterpillar, Inc., 262 F. 3d 1083, 1087 (10th Cir. 2001). The trial court found that Ms. Lang was not competent to testify as an expert because her opinion was not based on facts or data as required by Section 90.702(1) of the Florida Statutes (2013).2 Absent Appellant’s compliance with the statutory requirements, the court found that, “the rigors of Daubert have not been met.”3 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Second, the trial court concluded that Ms. Lang did not qualify as a lay witness.4 As a general rule, lay witnesses may not testify in the form of opinions or inferences; it is the function of the trier of fact to draw those inferences. Thorp v. State, 777 So. 2d 385, 395 (Fla. 2000) [25 Fla. L. Weekly S1056d]. Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived. Fino v. Nodine, 646 So. 2d 746, 748 (Fla. 4th DCA 1994).5 Even relevant and otherwise admissible opinion evidence is inadmissible where its probative value is substantially outweighed by the danger of unfair prejudice, if it would tend to mislead or confuse the trier of fact. Holland v. State, 916 So. 2d 750 (Fla. 2005) [30 Fla. L. Weekly S792a]. In the exercise of its discretion, the trial court properly concluded that Ms. Lang did not qualify as a lay witness. Ms. Lang was unqualified as an expert or lay witness, and her affidavit did not raise an issue of material fact such that it would preclude summary judgment. As the trial court correctly cited, “a party may not defeat a motion for summary judgment by raising purely paper issues where the pleadings and evidentiary matters before the trial court show that defenses are without substance in fact or law.” Reflex, N. V. v. UMET Trust, 336 So. 2d 473 (Fla. 3d DCA 1976).
The trial court properly found that, “the mere existence of Medicare and HMO and PPO rates that are lower than actual charges in the community does not create an issue of fact as to the reasonableness of a medical provider’s charge that exceeds reimbursement rates.” In assessing the reasonableness of medical charges, the Third District Court of Appeal has opined that Medicare is a social welfare program, not insurance. Atkins v. Allstate Ins. Co., 382 So. 2d 1276 (Fla 3d DCA 1980). This distinction is important because it would be unfair to assess medical charges by an comparison of dissimilar insurance and non-insurance charges. Local circuit appellate decisions have held that Medicare, HMO and PPO lower rates are not relevant as to the issue of reasonableness of charges. Virtual Imaging Svcs. Inc. v. State Farm Mut. Ins. Co., 23 Fla. L. Weekly Supp. 515a (Fla. 11th Cir. Ct. 2015); Hialeah Medical Inc. v. United Auto Ins. Co., 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. Ct. 2013).
Based on the foregoing, it is the opinion of this Court that the trial judge did not abuse his discretion. Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1308a]. Accordingly, the decision of the county court is per curiam affirmed. (HIRSCH, MILIAN & ZILBER JJ., CONCUR)
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1The insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule method to limit reimbursements. Geico General Ins. Co. v. Virtual Imaging Svcs., Inc., 141 So. 3d 147, 158 (Fla. 2013) [38 Fla. L. Weekly S517a]. Section 627.736 usage of the language, “may limit reimbursement,” “an insurer that applies” and “if an insurer limits payments” is permissive language. This language in the statute therefore creates a permissive option to limit reimbursement, not a mandatory obligation. The fee schedule formula is merely one option the insurer may employ in reimbursing medical claims. An insurer may instead choose to pay 80% of all reasonable medical expenses as set forth in Section 627.736(5)(a) 2.f., Fla. Stat. (2010).
2Expert opinions are no better than the data and method that undergird them. SMS Systems Maintenance Svcs., v Digital Equipment Corp., 188 F. 3d 11, 25 (1st Cir. 1999). “Testimony based solely on the experience of an expert is not admissible. The expert’s conclusions must be based on sound principles and the discipline itself must be a reliable one.” Rider v. Sandoz Pharmaceuticals, 295 F. 3d 1194, 1997 (11th Cir. 2002) [15 Fla. L. Weekly Fed. C699a].
3The Florida Supreme Court receded from the Daubert standard in DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018) [43 Fla. L. Weekly S459a] and reaffirmed the former standard articulated in. Frye v. United States, 293 F. 2d 1013 (D. C. Cir. 1923). “Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence.” Id. Nonetheless, the, “Frye standard is inapplicable to the majority of cases because it applies only when an expert attempts to render an opinion that is based upon new or novel scientific techniques.” Id.
4Daubert does not apply to lay opinion testimony admitted under Section 90.701. R.C. v. State, 192 So. 3d 606 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D1219b].
5The trial court judge analyzed circuit appellate cases, such as United Auto. Ins. Co. v. Miami Neurology Rehab. Specialists, 19 Fla. L. Weekly Supp. 799a (Fla. 11th Cir. Ct. June 19, 2012). Decisions of circuit appellate cases have persuasive value, but are non-binding case precedent. Nader v. Fla. [Dep’t. of] High. Safety & Motor Vehicles, 87 So. 3d 712 (2012) [37 Fla. L. Weekly S130a].
