Volume 18

18 Fla. L. Weekly Supp. 501a

Online Reference: FLWSUPP 1806MONT

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — No merit to claim that, if insurer’s affidavit offered in opposition to summary judgment is found to be insufficient by appellate court, insurer should be afforded opportunity to return to trial court to file amended affidavit where insurer did not seek leave to amend before trial court and argued in briefs that affidavit was more than sufficient — Appellate court reiterates prior opinion finding that, although trial court erred in refusing to consider peer review affidavit because it was not obtained prior to denial of medical bills, grant of summary judgment in favor of medical provider was proper under tipsy coachman doctrine because affidavit was conclusory, was based on unauthenticated and unattached documents, and conflicted with report of independent medical examination performed by same physician

18 Fla. L. Weekly Supp. 747a

Online Reference: FLWSUPP 1809DOCT

Insurance — Personal injury protection — Examination under oath — Failure to attend — Error to enter summary judgment in favor of medical provider on EUO no-show defense where there was factual dispute as to whether insurer received notice of insured’s request to reschedule EUO and whether insured’s rationale for failing to attend EUO was reasonable — Error to enter summary judgment in favor of provider upon finding that peer review report that opined that some treatment prior to certain date was not reasonable, related and necessary was invalid because it conflicted with independent medical examination report opining that all treatment after that date was not reasonable, related and necessary — Peer review report created genuine factual issue such that summary judgment should not have been entered

18 Fla. L. Weekly Supp. 414a

Online Reference: FLWSUPP 1804GUER

Insurance — Personal injury protection — Coverage — Medical expenses — CPT coding — Affidavit of certified procedural coder which addresses propriety of medical provider’s coding fails to rebut treating physician’s affidavit as to sole remaining issue of reasonableness of charges — Summary judgment is entered in favor of medical provider

18 Fla. L. Weekly Supp. 500a

Online Reference: FLWSUPP 1806LOPE

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — No abuse of discretion in denying admission of peer review affidavit which was submitted after summary judgment had been entered in favor of provider and which sought to cure “technical deficiency” in initial affidavit, which stated that “chiropractic treatment” was no longer reasonable, related, or medically necessary, although claim was one for medical treatment — No error in entering summary judgment in favor of provider where insurer did not present any countervailing evidence relating to claim for medical treatment — Discovery — Depositions — Trial court erred in awarding expert witness fees to treating physician for deposition testimony

18 Fla. L. Weekly Supp. 762a

Online Reference: FLWSUPP 1809FONT

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — No abuse of discretion in finding that attempted incorporation of peer review report into affidavit filed in opposition to summary judgment was void and that, absent incorporation, affidavit’s assertions were insufficient to avoid summary judgment — Moreover, trial court did not abuse discretion in determining that peer review report was inadmissible hearsay that cannot be considered in deciding motion for summary judgment — No abuse of discretion in rejecting corrected affidavit filed after summary judgment hearing — Entry of summary judgment in favor of medical provider is affirmed

18 Fla. L. Weekly Supp. 225a

Online Reference: FLWSUPP 1802LOPE

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Peer review report offered in opposition to motion for summary judgment on issue of reasonableness, relatedness and medical necessity of treatment is not admissible under business records exception to hearsay rule — Even if peer review report were admissible, conclusions therein are insufficient to create genuine issue of material fact precluding summary judgment — Because peer review report is inadmissible, so is physician’s affidavit that incorporates inadmissible peer review as factual basis — Physician’s amended affidavit is also inadmissible where amended affidavit contains impermissible, unexplained material change in sworn testimony and departure from original peer review

18 Fla. L. Weekly Supp. 1171a

Online Reference: FLWSUPP 1811JEAN

Insurance — Personal injury protection — Summary judgment — Partial summary judgment is granted in favor of medical provider on uncontested issues of accident, relatedness of injuries, and necessity of medical services and denied as to contested issue of reasonableness of charges

18 Fla. L. Weekly Supp. 1190a

Online Reference: FLWSUPP 1811GUZM

Insurance — Personal injury protection — Affirmative defenses — Summary judgment is granted in favor of medical provider with respect to affirmative defenses of NCCI edits, unbundling of CPT codes, and reasonableness, relatedness and necessity of treatment

18 Fla. L. Weekly Supp. 216a

Online Reference: FLWSUPP 1802CORN

Insurance — Personal injury protection — Motion for new trial is granted where verdict finding that treatment after insurer cut off benefits based on independent medical examination was not related to accident was contrary to manifest weight of evidence, including IME physician’s testimony that he would have rendered additional treatment for herniated disc revealed by MRI nine days after IME — New trial is also warranted by insurer’s questioning of medical provider’s witnesses regarding failure to bring parts of medical file to trial where questions were not designed to ask about missing documents but to portray provider as trying to hide information

18 Fla. L. Weekly Supp. 507c

Online Reference: FLWSUPP 1806LIBE

Insurance — Personal injury protection — Error to enter summary judgment in favor of medical provider on claim for massage therapy treatments provided after insurer terminated benefits for “chiropractic care” based on independent medical examination where there was genuine issue of material fact as to whether IME physician intended to include massage therapy in care he found to be no longer required