\18 Fla. L. Weekly Supp. 715a
Online Reference: FLWSUPP 1809AANDInsurance — Personal injury protection — Coverage — Medical benefits — Error to enter summary judgment in favor of provider on issue of reasonableness, relatedness and necessity of treatment where peer review report filed in opposition to summary judgment created genuine issue of material fact — Discovery — Depositions — No error in requiring insurer to pay expert witness fee to depose treating physician
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. COMPREHENSIVE HEALTH CENTER, LLC., a/a/o AWARD ANDERSON, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 09-237 AP & 09-523 AP. L.T. Case No. 08-13334 SP 05. March 8, 2011. On appeal from a decision rendered by the Miami-Dade County Court. Norma S. Lindsey, Judge. Counsel: Michael J. Neimand, Office of the General Counsel of United Automobile Insurance Company, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., for Appellee.
(Before FERNANDEZ, THOMAS and SANCHEZ-LLORENS, JJ.)
(PER CURIAM.) Appellant/Defendant, United Automobile Insurance Company (United Auto), appeals a final judgment rendered in favor of Appellee/Plaintiff Comprehensive Health Center, LLC., a/a/o Award Anderson (Comprehensive Health Center). For the reasons stated below, we REVERSE in part and AFFIRM in part.
On October 5, 2007, Award Anderson, as an insured of Appellant United Automobile Insurance Company was involved in an automobile accident. In exchange for treatment of his injuries, Mr. Anderson assigned his rights to Appellee Comprehensive Health. On July 16, 2008, Appellee Comprehensive Health filed a complaint against Appellant United Auto for the breach of a PIP contract. On September 23, 2008, Appellant United Auto filed its answer and affirmative defenses in which it maintained that some of the treatment rendered was not reasonable, related and necessary.
In response to Appellant’s request to depose the treating physician, Dr. Daryl Schleifer, Appellee Comprehensive Health filed a protective order seeking the payment of expert witness fees, prior to the deposition. The trial court granted the Appellee’s motion awarding Dr. Schleifer $375.00 per hour, which was ordered to be paid prior to the taking of the deposition.
On December 12, 2008, Appellee Comprehensive Health filed a motion for summary judgment alleging that all the treatment provided Mr. Anderson was reasonable, related and necessary. In support of its motion, Comprehensive Health filed the affidavit of the treating physician Dr. Schleifer, which stated that all treatment provided between, October 9, 2007 through November 2, 2007, was reasonable, related and necessary. In defense against the summary judgment motion, Appellant United Auto filed the affidavit and peer review report of Dr. Don Morris. In his peer review report, Dr. Morris stated that after reviewing the records of the medical treatment rendered to Mr. Anderson, it was his opinion that some of the treatment provided was not reasonable, related, or necessary. Dr. Morris’ peer review was not executed and completed until November 28, 2008, which was well after the initiation of the PIP action.
On April 20, 2009, a hearing was convened to address the Appellee’s motion for summary judgment. After entertaining argument from both sides, the trial court granted Appellee’s motion, finding all treatment provided reasonable, related and necessary. The final judgment in this matter was rendered on April 20, 2009. Appellant timely filed its appeal.
This Appellate Court reviews legal questions de novo. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 2000) [25 Fla. L. Weekly D1605a]. That being the case, we note that the Third District Court of Appeal has concluded that where an insurer fails to pay any or some of an insured’s medical bills, section 627.736(4)(b) of the Florida Statutes applies. United Automobile Insurance Company v. Perez, 21 So. 3d 886, 887 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2267a]; Partners in Health Chiropractic, a/a/o Neocles Lebrun v. United Automobile Insurance Co., 21 So. 3d 858, 864 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a]; United Automobile Insurance Co. v. Santa Fe Medical Center, a/a/o Telmo Lopez, 21 So. 3d 60, 67 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. Section 627.736(4)(b) “requires only that an insurer have reasonable proof that a rejected claim or claims (or bill or bills) are unreasonable, unrelated, or unnecessary; that such proof may be supplied by a report prepared in accordance with section 627.736(7)(a) or otherwise; and that such proof may be provided at any time.” Perez, 21 So. 3d at 887; see Partners in Health Chiropractic, a/a/o Neocles Lebrun., 21 So. 3d at 864 [34 Fla. L. Weekly D2177a]; Santa Fe Medical Center, a/a/o Telmo Lopez, 21 So. 3d at 67 [34 Fla. L. Weekly D2051b]. The peer review report submitted by Dr. Morris created a genuine issue of material fact precluding summary judgment. Accordingly, the summary judgment and consequently the final judgment must be reversed.
However, we affirm the trial court’s order granting Appellee’s motion for a protective order requiring payment of expert witness fees to Dr. Daryl Schleifer, D.C., the treating physician, prior to the taking of the deposition. See Fla. R. Civ. P. 1.390(a)&(c); Haldane v. Hall, 234 So. 2d 739, 740 (Fla. 4th DCA 1970) (treating “doctor was an expert witness within the meaning of Rule 1.390(a) and defendants contemplated the possible use [of his deposition] for evidence at trial.”); United Automobile Ins. Co. v. Eduardo J. Garrido, D.C., P.A., a/a/o Aurea T. Abreu, 17 Fla. L. Weekly Supp. 10a (Fla. 11th Cir.Ct. Nov. 10, 2009), relying on, Progressive Express Ins. Co v. Professional Medical Group, Inc., a/a/o Jurden Ugalde, 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Ct. Oct. 14, 2003) (“Under Fla. R. Civ. P. 1.390, the treating physician clearly falls within the definition of an expert witness, thereby entitling him to receive an expert fee.”); United Automobile Ins. Co. v. Cereceda & Assoc., D.C., P.A., 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Cir. Ct. Aug. 27, 2008) (“. . . a treating physician participates as an expert witness entitling him or her to an expert witness fee.”).
REVERSED in part, AFFIRMED in part, and REMANDED to the trial court for further proceedings consistent with this opinion.
