18 Fla. L. Weekly Supp. 156a
Online Reference: FLWSUPP 1802KLEIInsurance — Personal injury protection — Discovery — Depositions — Expert witness fees — No error in awarding expert witness fees for deposition of physician who supervised treating physician — Summary judgment — No error in failing to consider peer review without affidavit and entering summary judgment in favor of medical provider as to bills for chiropractic treatment — Error to enter summary judgment in favor of provider as to bills for orthopedic evaluation where affidavit and peer review report create genuine issue of material fact as to reasonableness, relatedness and necessity of evaluation
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. AFFILIATED HEALTH CARE CENTER, INC., a/a/o WILLIAM KLEIN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-155 AP and 09-341 AP. L.C. Case No. 08-4030 SP 05. November 3, 2010. On Appeal from the County Court for Miami-Dade County. Counsel: Michael J. Neimand, Office of The General Counsel, for United Automobile Insurance Company, for Appellant. Marlene S. Reiss, for Affiliated Health Care Center, Inc., for Appellee.
(Before LEESFIELD, DRESNICK, AND ECHARTE, JJ.)
(DRESNICK, Judge.) William Klein, the insured, was injured in a car accident on November 19, 2006, and was treated at Affiliated Health Care Center, Inc. Klein assigned his Personal Injury Protection (PIP) benefits to Affiliated. United Automobile Insurance Company made insurance benefit payments to Affiliated and then withdrew payments. On February 28, 2008, Affiliated filed a complaint against United for breach of contract for PIP benefits. On April 25, 2008, United filed an answer and affirmative defenses wherein it denied that treatment was reasonable, related and necessary.
Affiliated filed a motion seeking an expert witness fee prior to the deposition of Dr. Burak, the physician who supervised the insured’s treating physician. The Court granted this motion. Affiliated also filed a motion for summary judgment with the supporting affidavit of Dr. Burak on the grounds that all treatment was reasonable, related and necessary. In opposition to this motion, United filed Dr. Goldberg’s Affidavit and Peer Review Report. In his report, Dr. Goldberg stated he reviewed the chiropractic treatment records and Dr. Blinn’s January 2, 2007, orthopedic evaluation, and found Dr. Blinn’s orthopedic evaluation was not reasonable, related or necessary. Additionally, United filed Dr. Merritt’s Peer Review Report dated January 7, 2009, wherein Dr. Merritt denied a portion of the previously rendered treatment and reduced the charges for same.
On March 10, 2009, a hearing was held on Affiliated’s motion for summary judgment. The trial court granted the motion for summary judgment finding that all the treatment was reasonable, related and necessary. A final judgment was entered with a principal sum of $1,876, plus interest, which included Dr. Blinn’s bill for his orthopedic evaluation.
United raises several issues on appeal which we will deal with below. We hereby Affirm the trial court’s order awarding expert witness fees without opinion. After a review of the record and supporting affidavits, we hereby Affirm in part and Reverse in part the Final Summary Judgment.
The standard of review for a lower court’s order granting summary judgment is de novo. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. When reviewing the entry of a summary judgment, the appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party. Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000) [25 Fla. L. Weekly S233a]. “[T]he burden of proving the absence of a genuine issue of material fact is upon the moving party.” Holl v. Talcott, 191 So. 2d 40,43 (Fla. 1966)
United argues that the trial court erred in granting summary judgment without considering Dr. Goldberg’s Affidavit and Peer Review and Dr. Merrit’s Peer Review. United contends that these documents created genuine issues of disputed fact. Affiliated points out that there is no record of the proceedings below related to the hearing on the summary judgment. Affiliated also contends that nothing in the record supports United’s assertion that the trial court did not consider the experts’ Affidavit and Peer Reviews, but even if the trial court did not consider these documents, it was correct in doing so. Affiliated asserts that Dr. Merrit’s Peer Review without an affidavit is inherently untrustworthy and inadmissible under Rule 1.510. The trial court may have found this to be true, or it may have found that Dr. Meritt’s purported jurat was insufficient. Further, the trial court may have determined that United was estopped from relying on the experts’ Affidavit and Peer Reviews because in response to Affiliated’s request for production, United stated that it had no paper IMEs to rely on in denying any of Affiliated’s bills.
After consideration by this Court, We affirm that portion of the final summary judgment that incorporated the bills for the chiropractic treatment where a review of the record indicates that there was no genuine issue of material fact regarding the treatment’s reasonableness, relatedness or necessity. Although there is no transcript showing whether Dr. Merrit’s Peer Review was considered by the trial court when granting final summary judgment on all the bills, we find that the record supports Affiliated’s position that the trial court should not have considered Dr. Merrit’s Peer Review for the reasons stated above.
However, We reverse that portion of the final summary judgment that incorporated the bill for Dr. Blinn’s orthopedic evaluation where a review of the record indicates that a genuine issue of material fact exists as to the reasonableness, relatedness and necessity of Dr. Blinn’s evaluation. A review of the record shows Dr. Goldberg’s Affidavit and Peer Review is sufficient, and his report stated that based on Dr. Goldberg’s review of the records, Dr. Blinn’s evaluation dated January 2, 2007, was unnecessary, unreasonable and unrelated. Therefore, Dr. Goldberg’s Affidavit and Peer Review create a genuine issue of material fact with respect to Dr. Blinn’s orthopedic evaluation.
In conclusion, We find that the trial court’s entry of summary judgment in favor of Affiliated on all the bills was erroneous, and should be Reversed in part. Affiliated was only entitled to summary judgment as to the chiropractic bills, and was not entitled to summary judgment as to Dr. Blinn’s orthopedic evaluation bill where Dr. Goldberg’s Affidavit created a material issue of material fact as to that bill.
Taken as a whole, we find that Affiliated is the prevailing party on appeal. As such, the fee judgment must be affirmed and Affiliated’s motion for appellate attorney’s fees is granted. From a monetary standpoint, the chiropractic bills (on which it prevailed) were significantly greater than the cost of the orthopedic evaluation bill. Additionally, in its briefs and at oral argument, Affiliated waived any right to recover on the orthopedic evaluation bill.
AFFIRMED in part, REVERSED in part, and REMANDED for the entry of a final judgment deleting the amount of Dr. Blinn’s orthopedic evaluation. (LEESFIELD and ECHARTE, JJ, concur.)
