28 Fla. L. Weekly Supp. 198a

Online Reference: FLWSUPP 2803CONT

Insurance — Personal injury protection — Coverage — Medical expenses — Deductible — Trial court correctly found that deductible should have been applied to 100% of charges before reduction under statutory fee schedule — Reasonableness of charges — Summary judgment — Trial court erred in rejecting opposing expert affidavit filed by insurer on issue of reasonableness of charges and entering summary judgment on issue in medical provider’s favor — Trial court improperly conducted Daubert analysis despite fact that provider did not timely challenge expert’s compliance with section 90.702, and affidavit conformed to requirements for expert testimony

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. NEW MEDICAL GROUP, INC., a/a/o Silvia Contino, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 15-274 AP 01. L.T. Case No. 11-1881 SP (26). Second Corrected Opinion filed May 14, 2020. An appeal from the County Court in and for Miami-Dade County, Hon. Gloria Gonzalez-Meyer, County Court Judge. Counsel: Michael J. Neimand, House Counsel of United Automobile Insurance Company, for Appellant. Stuart L. Koenigsberg, A Able Advocates — Stuart L. Koenigsberg, P.A., for Appellee.

(Before WALSH, TRAWICK, and DE LA O, JJ.¹)

(TRAWICK, J.) The opinion issued on May 7, 2020 is withdrawn and the following opinion substituted in its place.

United Automobile Insurance Company (“United Auto”) appeals a Final Judgment for Medical Benefits and Interest (“Final Judgment”), entered on July 28, 2015 in favor of New Medical Group, Inc. a/a/o Silvia Contino (“New Medical”), on the basis that the county court improperly granted summary judgment in favor of New Medical.

On January 26, 2009, United Auto’s insured, Silvia Contino (“Ms. Contino”), was injured in an automobile accident, received medical treatment from and assigned her benefits to New Medical. Ms. Contino’s United Auto Insurance Policy included a $1,000.00 deductible. United Auto reduced New Medical’s bills pursuant to section 627.736 (5)(a)(2)(f), Florida Statutes (2009) and then applied Ms. Contino’s $1,000.00 policy deductible. Afterward, New Medical filed a three-count complaint claiming improper application of the PIP policy deductible as well as breach of contract.

Both Parties moved for summary judgment regarding the application of the policy deductible. Additionally, New Medical moved for summary judgment on the issue of the reasonableness of the charges related to Ms. Contino’s medical treatment. The trial court entered summary judgment in favor of New Medical on both issues. The trial court then entered Final Judgment in favor of New Medical.

The standard of review of a trial court’s entry of a final summary judgment is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]; Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. “The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). We find that the trial court properly found that the deductible was incorrectly applied to reduced bills, but erred in granting summary judgment on the issue of reasonableness.

Application of the Deductible

After Final Judgment was entered below, the Florida Supreme Court addressed the question regarding the timing of the application of the deductible. In Progressive Select Ins. Co. v. Florida Hospital Medical Center, 260 So. 3d 219 (Fla. 2018) [44 Fla. L. Weekly S59a] the Supreme Court held that “section 627.739(2) requires the deductible to be applied to the total medical charges prior to reduction under the reimbursement limitation in section 627.736(5)(a)1.b.” Id. at 221. Accordingly, we find that the trial court was correct in finding that the deductible should have been applied to 100% of the face value of the charges before making any reductions.

Reasonableness

Section 627.736(5)(a), Florida Statutes (2018) provides that:

In determining 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, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

New Medical had the burden of establishing that the charges for the services rendered were reasonable. See State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244, 1246 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D1757a]; see also Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a]. In support of its motion for summary judgment on reasonableness, New Medical relied on the deposition testimony of its corporate representative, Craig Dempsey (“Mr. Dempsey”).²

A provider’s medical bills along with testimony that the patient received the bills, present prima facie evidence of the reasonableness of its charges. See, e.g., Walerowicz v. Armand-Hosang, 248 So. 3d 140 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D1165a] (testimony by lay witness associating treatment to bill was sufficient to establish reasonableness of the bills); A.J. v. State, 677 So. 2d 935 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e] (patient may testify as to the reasonableness of his own medical bills).

State Farm Mut. Auto. Ins. Co. v. Gables Insur. Co., 25 Fla. L. Weekly Supp. 857a (Fla. 11th Cir. Ct. 2017)) (citing A.J. v. State, 677 So. 2d 935, 937 (Fla 4th DCA 1996) [21 Fla. L. Weekly D1677e]) (“[A] medical bill constitutes the provider’s opinion of a reasonable charge for the services.); State Farm Mut. Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a (Fla. 11th Cir. Ct. Oct. 5, 2004) (Lay testimony from a fact witness with first-hand knowledge may be presented as to why the charge for the service was set at the rate at which it was billed.). Further, expert testimony is not a necessary predicate to admitting medical bills. Canseco v. Cheeks, 939 So. 2d 1122, 1123 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]; A.J., 677 So. 2d at 937-38. As discussed below, Mr. Dempsey’s deposition testimony is sufficient to present a prima facie case with regard to reasonableness.

Florida Rule of Civil Procedure 1.510(e) requires that affidavits submitted to satisfy a movant’s burden on summary judgment proceedings:

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 the affidavit must be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.

Id.; see also State Farm Mut. Auto. Ins. Co. v. Pembroke Pines MRI, Inc., 171 So. 3d 814, 816-17 (Fla 4th DCA 2015) [40 Fla. L. Weekly D1879a] (citing Castro v. Brazeau, 873 So. 2d 516, 517 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1214b]).

Mr. Dempsey’s testified that he had more than 30 years of medical billing experience, which included 17 years as the owner of two medical billing companies. He also testified regarding his background as a billing agent and consultant for over 180 chiropractors’ clinics throughout the State. He then introduced the data he used to form the basis of his opinion as to the reasonableness of New Medical’s charges. Mr. Dempsey concluded that New Medical’s fees were reasonable and well within the usual and customary rate related to the particular geographical area. See Margate Pain and Rehabilitation, Inc. v. State Farm Mut. Auto. Ins. Co., 25 Fla. L. Weekly Supp. 912a (Fla. 11th Cir. Ct. 2017) (finding similar testimony from Mr. Dempsey presented a prima facie showing of reasonableness). We likewise agree that Mr. Dempsey’s testimony here was sufficient to establish a prima facie showing of reasonableness.

On the other hand, we disagree with the trial court’s determination that Dr. Millheiser’s affidavit was insufficient in countering New Medical’s prima facie case. “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, Dept. of Banking and Finance, Div. of Securities and Investor Protection, 538 So. 2d 1365, 1367 (Fla. 1st DCA 1989) (citation omitted). Once competent evidence is tendered, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979). In opposition to New Medical’s summary judgment motion on the issue of reasonableness, United Auto filed the affidavit of Peter Millheiser, M.D.

Dr. Millheiser’s affidavit stated in part that he reviewed Ms. Contino’s, bills and records, HCFA billing forms, patient ledger treatment notes and evaluation reports; he has over 40 years of experience and knowledge of prices in the medical community for Miami-Dade County; he consults and evaluates various managed care guides, Medicare, Medicaid and workers compensation reimbursement schedules; he is familiar with the reimbursement schedules of various insurance carriers; throughout his years of medical experience he is familiar with managed care and has reviewed years of work for numerous insurance carriers; and, he is familiar with accepted reimbursements from PIP insurers, Medicare, Medicaid, Worker’s Compensation, HMO health insurers, PPO insurers, self-insured’s out-of-pocket / cash pay patients. Based upon his above experience, he opined that the amounts charged by New Medical for the treatment and services at issue are all unreasonable charges for 2009 and 2010, which are the years billed to Ms Contino.

New Medical’s contention to the contrary notwithstanding, an insurer’s failure to elect to use the fee schedule limitation in an insurer’s policy, does not preclude it from having an opportunity to litigate the reasonableness of its bill under section 627.736(5)(a)1, Florida Statutes (2008). Progressive Select Insurance Co. v. Emergency Physicians of Central Fla., 202 So. 3d 437, 438 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D2145a]. Furthermore, we agree with our sister court that consideration need not be given to all factors listed in section 627.736(5)(a). “Based upon the clear wording of the above statutory provision, there is nothing in the statute that mandates that consideration be given to every factor when determining whether a service or treatment is reasonable. Rather, the statute provides that ‘consideration may be given’ to certain factors.” (emphasis provided in original) United Auto. Ins. Co. v. Hallandale Open MRI, a/a/o Antonette Williams, 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. Ct. Dec. 11, 2013).

Additionally, we find that the trial court erred in conducting an extensive Daubert analysis of Dr. Millheiser’s testimony at the hearing on New Medical’s motion for summary judgment. A Daubert challenge should not be addressed at a summary judgment hearing, unless the party making the challenge filed a motion setting forth the alleged defects in the expert’s opinion. Rojas v. Rodriguez, 185 So. 3d 710, 712 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D423a]; State Farm Mut. Auto. Ins. Co. v. A1A Mgmt. Servs., LLC d/b/a Roberto Rivera-Morales, M.D., (a/a/o Farano Muselaire), 25 Fla. L. Weekly Supp. 860a (Fla. 11th Cir. Ct. 2017) (“Farano Muselaire II”). Here, the record does not show that New Medical timely challenged compliance with section 90.702, Florida Statutes. A Daubert objection must be timely made. See Rojas, 185 So. 3d at 712 (Fla. 3d DCA 2016). Therefore, we find improper the county court’s rejection of Dr. Millheiser’s affidavit based on its extensive Daubert analysis and its conformity to the requirements of expert testimony.

Trial courts should exercise caution when granting summary judgment on the medical charges’ reasonableness because reasonableness “is generally a factual issue ripe for determination by a jury.” State Farm Mut. Auto. Ins. Co. v. Florida Wellness & Rehabilitation Center, Inc., 25 Fla. L. Weekly Supp. 5a (Fla. 11th Cir. Ct. 2017) (citing State Farm Mut. Auto. Ins. Co. v. Sunset Chiropractic & Wellness, 24 Fla. L. Weekly Supp. 787a (Fla. 11th Cir. Ct. 2017)). 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]. We find that the Affidavit of Dr. Millheiser raised genuine issues of material fact which precluded the entry of summary judgment and should not have been rejected. See State Farm Mutual Ins. Co. v. Gables Insurance Recovery a/a/o Yuderis Rego, 27 Fla. L. Weekly Supp. 860a (Fla. 11th Cir. Ct. Nov. 20. 2019); United Automobile Insurance Co. v. Open MRI of Miami Dade, Ltd. a/a/o Rosa Castillo, Case No. 2017-326-AP-01 (Fla. 11th Cir. Ct. Nov. 6, 2019) [27 Fla. L. Weekly Supp. 791b]; United Automobile Insurance Co., Appellant, v. Miami Dade County MRI, Corp. a/a/o Marta Figueredo, 27 Fla. L. Weekly Supp. 506b (Fla. 11th Cir. App. July 30, 2019); United Automobile Insurance Co., Appellant, v. Miami Dade County MRI, Corp. a/a/o Javier Rodriguez, 27 Fla. L. Weekly Supp. 225c (Fla. 11th Cir. Ct. July 25, 2019); United Automobile Insurance Co., Appellant, v. Miami Dade County MRI, Corp. a/a/o Rene Dechard, 27 Fla. L. Weekly Supp. 226a (Fla. 11th Cir. Ct., August 12, 2019); United Automobile Insurance Co., Appellant, v. Millennium Radiology, LLC a/a/o Javier Rodriguez, 25 Fla. L. Weekly Supp. 911b (Fla. 11th Cir. Ct., July 19, 2019). Based on the above analysis, the Final Judgment is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion. Appellant’s motion for appellate attorney’s fees is conditionally granted upon satisfying its proposal for settlement and the trial court’s determination of the sufficiency and enforceability of the proposal for settlement. Appellee’s motion for appellate attorney’s fees is hereby granted, limited to the work on the issue on which it prevailed. The case is remanded to the trial court to determine the amount of a reasonable fee. (WALSH and DE LA O, JJ. concur.)

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¹Judge De La O did not participate in the oral argument heard by this Court.

²Mr. Dempsy, as corporate representative for New Medical and acting on its behalf, is not required to state the source of his knowledge. See Beverage Canners, Inc. v. E.D. Green Corp., 291 So. 2d 193, 195 (Fla. 1974). The court may presume the basis of his personal knowledge stems from his job duties and position as the corporate representative. Buzzi v. Quality Serv. Station, Inc., 921 So. 2d 14, 15-16 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D182a]; Alvarez v. Florida Ins. Guar. Ass’n, Inc., 661 So. 2d 1230, 1232 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2214a]; see Deshazior v. Sch. Bd. of Miami-Dade County, 217 So. 3d 151 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D725a]. Regardless, Mr. Dempsey’s deposition provided a detailed account of the source of his knowledge.