Volume 15

15 Fla. L. Weekly Supp. 924a

Insurance — Personal injury protection — Withdrawal of benefits — Reasonable proof — Peer review report is valid despite fact that peer review doctor did not personally examine insured where report is factually supported by treatment records and independent medical examination conducted by another doctor — However, where insurer did not obtain report before withdrawing treatment authorization and benefits, report is inadmissible to support claim that treatment was not medically necessary or related — Insurer did not forfeit right to assert lack of necessity or relatedness as defense and may rely on other reasonable proof to support defense — Requirement to obtain reasonable proof prior to action applies regardless of whether refusal to pay is labeled as “withdrawal” or “denial”

15 Fla. L. Weekly Supp. 322a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Evidence — Peer review — Error to strike peer review report and testimony of reviewer on grounds that review was not prepared within 30 days from date of notice of loss and was not based on physical examination — Directed verdict in favor of medical provider is reversed and case is remanded for factual determination of whether medical bills were reasonable, related and necessary

15 Fla. L. Weekly Supp. 320a

NOT FINAL VERSION OF OPINION
Subsequent Changes at FLWSUPP 165AMADO

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Evidence — Peer review — Error to refuse to consider peer review because it was obtained more than 30 days after medical bills became due — Remand for determination of legal and factual validity of peer review affidavit — Disclosure and acknowledgment form — Statute requiring D&A form is applicable to all services rendered after effective date of statute, regardless of fact that policy predates statute — Insurer is estopped from asserting defense of defective D&A form where insurer acknowledges that it received medical records and HCFA form as attachments to D&A form that left blank lines provided for setting forth services rendered; after receiving form, insurer dealt with insured as if there were no problems with form and required her to submit to examination under oath and independent medical examination; and insurer did not send explanation of benefits denying claim based on insufficient form

15 Fla. L. Weekly Supp. 317a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Evidence — Peer review — Error to find that peer review could not establish reasonable proof to contest medical bills as unreasonable, unrelated or unnecessary because review was not completed within 30 days of receipt of medical bills and was not performed by physician who examined insured — As peer review presented clear genuine issue of material fact as to whether treatment was reasonable, related and necessary, summary judgment in favor of medical provider is reversed and case is remanded for factual determination of issue

15 Fla. L. Weekly Supp. 1154b

Insurance — Personal injury protection — Trial — Continuance — Abuse of discretion to deny one-day continuance to present testimony of peer review physician who was unavailable on day of trial due to patient emergencies — No merit to argument that physician should not be allowed to testify because peer review was conducted more than 30 days after treatment was rendered

15 Fla. L. Weekly Supp. 908b

Insurance — Personal injury protection — Summary judgment is granted in favor of medical provider where affidavit of physician is sufficient to establish that fees charged were reasonable and necessary — No merit to argument that summary judgment cannot be granted due to insufficient discovery where insurer failed to request continuance or file and schedule a motion to compel discovery, and insurer did not raise argument until amended motion for summary judgment was filed

15 Fla. L. Weekly Supp. 319a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Evidence — Peer review conducted more than 30 days after receipt of claim — Where insurer did not withdraw payment but denied claim from outset, insurer did not forfeit ability to contest payment by failure to obtain reasonable proof within 30 days of receipt of claim, and trial court erred in refusing to consider peer review report not prepared within 30-day period — Affidavit — Sufficiency — Where peer review report attached to affidavit detailed the medical records reviewed, and the medical records were filed in court record, affidavit was not insufficient for failure to attach referenced records — No merit to claim that affidavit was unsworn — Although peer review states that it is based on best of doctor’s knowledge, attached affidavit indicated that information in peer review was based on doctor’s personal knowledge, and this rebutted claim that peer review was not based on personal knowledge — No merit to argument that peer review is invalid because it was not based on physical examination of insured by peer review doctor — Statute authorizes report based on review of examination and treatment records and does not require separate physical exam — Summary judgment in favor of medical provider reversed and remanded

15 Fla. L. Weekly Supp. 776b

Insurance — Personal injury protection — Withdrawal of benefits — Reasonable proof — Physician’s peer review report opining that treatment is not reasonable, related or necessary can constitute reasonable proof that insurer is not responsible for payment of claim even though report was prepared more than 30 days after receipt of claim — Peer review report constitutes valid report supporting withdrawal of benefits even though it is not based on physical examination by physician who prepared report

15 Fla. L. Weekly Supp. 429a

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Where affidavit of doctor who performed peer review but did not personally examine insured is not made on personal knowledge, peer review report adopted by affidavit makes reference to medical records not attached thereto, and insurer gave no notice that affidavit and report were filed to oppose summary judgment, trial court did not abuse discretion in refusing to consider affidavit and report — No merit to argument that statutory requirement to obtain report by physician who has examined insured prior to withdrawal of treatment authorization is not applicable to insurer that never paid any benefits to medical provider

15 Fla. L. Weekly Supp. 312a

Insurance — Personal injury protection — Peer review report and affidavit by physician who never examined insured is inadmissible hearsay that should not have been considered by court ruling on motion for summary judgment — No merit to argument that physical examination requirement of PIP statute does not apply where benefits are denied, rather than commenced then withdrawn — No abuse of discretion in granting motion for summary judgment