Volume 13

13 Fla. L. Weekly Supp. 244a

Insurance — Personal injury protection — Summary judgment — Evidence — Peer review — No abuse of discretion in excluding peer review report from consideration on motion for summary judgment where there is no indication that physician who prepared report actually examined insured or reviewed complete treatment records or that physician met record keeping requirements of section 627.736(7)(a) — Further, insurer has failed to demonstrate report would be admissible as affidavit where record fails to indicate that it was made under oath or that records referenced therein were authenticated and attached

13 Fla. L. Weekly Supp. 900a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit — Where witness whose deposition testimony insurer offered to dispute amount of charges relied on Physician Fee and Coding Guide for year prior to year of treatment, testimony was unreliable — Further, where insurer failed to attach to testimony portions of guide on which witness relied, testimony could not be used — Summary judgment granted in favor of medical provider

13 Fla. L. Weekly Supp. 1206a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Notice of filing compulsory medical examination report could not be relied upon by insurer at summary judgment proceeding where notice was untimely filed at hearing without exigent circumstances — Medical report, which was not accompanied by affidavit or sworn testimony, was hearsay — Deposition testimony of litigation adjuster was unreliable and inadmissible to show medical bills were not within usual and customary range where adjuster referred to Physician’s Fee and Coding Guide but did not identify to which year or edition of guide she was referring or attach pages referenced to deposition, and insurer failed to submit admissible evidence that would establish that adjuster was expert who could rely on guide — Where litigation adjuster who did not actually make reductions read from claims adjuster’s notes which were not made part of record pursuant to insurer’s work product privilege objection, reliance on claims adjuster’s notes was tantamount to relying on hearsay and violated sword and shield doctrine — Summary judgment entered in favor of medical provider

13 Fla. L. Weekly Supp. 182a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Affidavits presented by insurer in opposition to motion for summary judgment are insufficient where affidavits were served on day of hearing and conflict with insurer’s response to interrogatory stating that sole basis for denial of benefits was excessiveness of bills and insurer’s admissions that MRI at issue was reasonable, related and necessary — Independent medical examination and peer review reports are insufficient where reports state that information is true to best of reporting physician’s knowledge or that contents are true and accurate, but do not state that reports are based on personal knowledge — Further, reports are insufficient for having been filed after insurer had already withdrawn benefits — Final judgment entered in favor of medical provider

13 Fla. L. Weekly Supp. 507b

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Where treating physician’s affidavit establishes that insured was injured as result of motor vehicle accident and that treatment was reasonable, related to accident and medically necessary; insured’s coverage under policy is established by insurer’s responses to request for admissions; and insurer filed opposing affidavit of physician which was insufficient, in that affidavit was unsworn and stated that information was accurate to best of affiant’s knowledge; but affidavit of adjuster raised disputed issue of material fact as to amount of deductible; medical provider is entitled to partial summary judgment as to reasonableness, relatedness and necessity of 80% of amount claimed, less applicable deductible no greater than amount adjuster claims is due

13 Fla. L. Weekly Supp. 433a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — Affidavit of treating physician was sufficient to meet medical provider’s burden of demonstrating absence of genuine issue of material fact regarding medical necessity and relatedness of treatment — Affidavit was conclusory and insufficient with regard to reasonableness of amount claimed where affidavit stated that amount of bill was reasonable and what is customarily charged for similar medical services in the community but did not provide foundation of provider’s personal knowledge and/or expertise regarding community billing practices, did not recite any admissible facts or physician’s guide on which statement regarding reasonableness of amount billed was based, and did not make an affirmative showing that provider was competent to testify regarding his billing statement

13 Fla. L. Weekly Supp. 1157a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Medical provider’s affidavit in support of summary judgment that contained nothing other than conclusory and self-serving statements that treatment was reasonable, related and necessary and that proper code was used to bill insurer was not sufficient to support summary judgment — Further, where affidavit directly contradicted statements made in provider’s deposition, affidavit raised factual issues which should have precluded entry of summary judgment — Trial court also erred in ruling that insurer was not entitled to rely on computer-based database to support reduction in payment of charges

13 Fla. L. Weekly Supp. 505a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Medical provider’s motion for partial summary judgment on issue of reasonableness, relatedness and necessity of treatment is granted where provider’s motion and affidavit facially establish entitlement to summary judgment on issue; insurer failed to submit any affidavits or reports to rebut provider’s assertion that treatment was reasonable, related and necessary; and insurer withdrew transcript of deposition of representative of billing company related to issue

13 Fla. L. Weekly Supp. 381b

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Where medical provider filed affidavit of treating physician stating that treatment rendered was related to accident and medically necessary and that charges were reasonable in amount, provider met burden of moving party to establish non-existence of any genuine issue of material fact — Opposing affidavit of physician filed by insurer is insufficient to raise disputed issue of material fact where physician’s report was obtained untimely after withdrawal of benefits and physician is not licensed under same chapter as treating physician — Affidavit of actuary is legally insufficient where reference to information collected from providers does not demonstrate personal knowledge, Medicare data on which actuary also relies is proprietary to third party not shown to be authoritative source on issue, and fees paid by Medicare are insufficient to raise disputed issue of material fact as to reasonableness of fees charged in non-Medicare context — Final summary judgment entered in favor of provider

13 Fla. L. Weekly Supp. 787a

Insurance — Personal injury protection — Appeals — Record — Trial court’s striking of affirmative defense that services were not reasonable, related or necessary and precluding insurer’s doctor from testifying about issue is affirmed where insurer failed to include in record on appeal order striking affirmative defense as sanction for discovery violations or documentation of events leading up to imposition of sanction — Directed verdict — Error to enter directed verdict in favor of medical provider where testimony of provider’s doctor was conflicting and created inference that doctor may not have reviewed insured’s charts adequately to determine that medical bills were reasonable, necessary and related