24 Fla. L. Weekly Supp. 559a
Online Reference: FLWSUPP 2407LSANInsurance — Personal injury protection — Coverage — Medical expenses — Timeliness of claim — Insurer that issued payment in response to bill that it now claims was untimely submitted more than 35 days after date of treatment waived untimely billing defense — Reasonableness of charges — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affiant’s opinion is not based on sufficient facts, lacks data analysis, and erroneously relies on fee schedules and payments by HMOs and PPOs — Relatedness and medical necessity of treatment — Affidavit alleging deficiencies in medical provider’s record-keeping does not create genuine issue of material fact regarding relatedness or necessity of treatment
DORAL HEALTH CENTER, P.A. (a/a/o Leonor Sanchez) Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-2615 SP 24. September 14, 2016. Donald J. Cannava, Judge. Counsel: Charles Hubley, II, The Patino Laww Firm, Hialeah, for Plaintiff. Marcus Griggs, The Roig Firm, for Defendant.
FINAL JUDGMENT FOR PLAINTIFFAND ORDER GRANTING PLAINTIFF’SMOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before the Court on September 2nd, 2016, on Plaintiff, Doral Health Center, P.A. a/a/o Leonor Sanchez (“DORAL”), Motion for Final Summary Judgment, and the Court, having considered the motion, the entire Court file, the argument of counsel, the relevant legal authorities, and having been otherwise advised in the premises, makes the following finding of fact and conclusions of law:
1. This matter was filed by DORAL as assignee of Leonor Sanchez (“Claimant”), against State Farm Mutual Automobile Insurance Company, for date of service August 2, 2012, based on the automobile accident of June 10, 2012.
2. At the hearing on Plaintiff’s Motion for Final Summary Judgment, Plaintiff relied on the affidavits of Dr. Miguel Toro, D.C., affidavit of Nik Salles, affidavit of Dr. Eduardo Ramirez, D.C., as well as the affidavit of Steven Oliver. The Defendant relied on the affidavits of Dr. Michael Mathesie, D.C., as well as the affidavit of Steven Oliver.
SUMMARY JUDGMENT STANDARD
3. This Court must grant summary judgment to a movant when there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law. See Fla. R. Civ. P. Rule 1.510. The movant for summary judgment has the initial burden of demonstrating the non-existence of a genuine issue of material fact. Ramos v. Wright Superior, Inc., 610 So.2d 46 (Fla. 3d DCA 1992). The Court, in deteriming whether there are any genuine issues of material fact, views all inferences in favor of the non-moving party. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Once the movant tenders competent evidence supporting its moton for summary judgment, the non-moving party must come forward with counter-evience sufficient for the non-moving party to merely assert that an issue exists. Landers v. Milton, 370 So.2d 368 (Fla. 1979). The moving party may proffer affidavits to establish the non-existence of a genuine issue of material fact. See Almand v. Evans, 547 So.2d 626 (Fla. 1989). Where the proponent of expert testimony offers such expert testimony, the opponent of such expert testimony, in order to create a factual issue for the trier of fact, must: (1) present countervailing expert testimony; (2) severly impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proffered expert opinion. Rose v. Dwin, 762 So.2d 532 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1083c]. Questions of law, such as the questions in this case, arising form the interpretation of contracts and statutes are particularly amenable to resolution by summary judgment. See, e.g., United v. Neurology, 11 Fla. L. Weekly Supp. 204b (Fla. 11th Cir. Cnty. Ct. 2004 )(upholding a summary judgment in a PIP suit where the court found, as a matter of law, that the treatment at issue was reasonable, related, and medically necessary).ANALYSIS
A. Affirmative Defense of Untimely Billing
4. In support of Defendant’s Motion for Final Summary Judgment Regarding Late Bililng, STATE FARM filed the affidavits of Steven Oliver, who attests that the subject medical bills were untimely received by STATE FARM and are therefore not compensable pursuant to Fla. Stat. §627.736(5)(c). In the affidavits of Steven Oliver, STATE FARM has admitted that it received the medical bill and subsequently issued payment for the same medical bill that it is now asserting was untimely submitted. The Court also notes that the explanation of review submited with the payment omitted any reference that the Plaintiff’s bill was submitted outside the requisite 35 days.
5. This Court is aware of the recent case Florida Medical and Injury Center, Inc. v. Progressive Express Ins. Co., 29 So.3d 329 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D215b], in which the Fourth District Court of Appeal held that an insurer waives defects in a claim under subsection (5) of the No Fault Act by paying for the services at issue. The Court is also mindful of the Third District Court of Appeal’s decision in United Auto. Ins. Co. v. Eduardo J. Garrido, D.C., P.A., 990 So.2d 574 (Fla. 3rd DCA 2008) [33 Fla. L. Weekly D1846b], in which the appellate court found that neither submitting untimely bills along with timely bills to an independent medical examiner for a determination of medical necessity, nor failing to check “late billing” as a reason for denying payment of untimely bills on an explanation of benefits form, constitutes a waiver of the timely billing requirements of Fla. Stat. §627.736(5)(c)(1). The crucial difference between these two precedents, and what allows this Court to distinguish the Garrido holding from the case at hand, is the fact that here STATE FARM has issued payment in response to an allegedly late bill.
6. In Garrido (supra), the provider’s alleged late bill was initially denied payment in its entirety due to an independent medical examination cut-off. The Garrido court ruled that the Defendant had not waived its right to assert untimely billing as a defense. In this case, the Defendant’s payment waived the insurance carrier’s right to dispute late billing. See Douglas Diagnostic Center, Inc. a/a/o Maria Elena Lopez v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 853a (Fla. 17th Cir. Cnty. Ct. 2015) (Lee, J.) and Florida Medical and Injury Center, Inc. v. Progressive Express Ins. Co., 29 So.3d 329 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D215b]. For the reasons set forth above, STATE FARM has not established a genuine issue of material fact as to the waiver of the untimely billing defense. The Court therefore grants DORAL’s Motion for Final Summary Judgment as to the waiver of STATE FARM’s defense of untimely billing.
B. Reasonableness of the Charges
7. DORAL submitted as summary judgment evidence the affidavits of Dr. Miguel Toro, D.C., as well as the affidavit of Nik Salles. Both affidavits independently authenticated the medical records, including the medical bill, at issue in this case and established a business record predicate as an exception to the hearsay rule. The affidavit of Dr. Miguel Toro, D.C., dated July 22nd, 2016, also confirmed that the service at issue was actually rendered to the patient Leonor Sanchez. The Plaintiff’s introduction of the medical bills into evidence, along with testimony that the services were actually rendered, satisfies the Plaintiff’s prima facie burden on the reasonableness of the charges. See Pan Am Diagnostic Services, Inc. a/a/o Fritz Telusma v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. 17th Cir. Cnty. Ct. 2013).
8. Relying only on Dr. Mathesie’s affidavit, STATE FARM has failed to present competent evidence to rebut DORAL’s prima facie showing that its charges for medical services rendered to the patient were reasonable. Insurers in Florida, including STATE FARM, in determining a reasonable charge, purusant to Florida Statute §627.736(5)(a)(1), may consider, “evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community, and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.”
9. The primary issue for determination by the Court is whether Dr. Mathesie’s opinions can be considered within the context of the recent amendments to §90.702 Florida Statutes (2013), which, in July 2013, adopted the Daubert standard governing the admissibility of expert witness testimony.
10. In enacting the evidentiary standard established by the United States Supreme Court in Daubert v. Merrel Dow, 509 U.S. 579 (1993), the Florida Legislature expressed a specific intent to abolish “pure opinion” expert testimony. The amended statute, in pertinent part provides that:
[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods: and
(3) The witness has applied the principles and methods reliably to the facts of the case
11. A recent case from Florida’s Third District Court of Appeal, Perez v. Bellsouth Telecommunications, Inc., 138 So.3d 492 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b], discusses the role of this Court as the “gatekeeper” of admissible evidence and the requirement that expert testimony be based upon the “scientific method,” which requires empirical testing of data to ensure that conclusions are valid. Perez defines “empirical testing” as “developing hypotheses and testing them through blind experiments to see if they can be verified.” Id., 138 So.3d 492 at 498. Factors to consider include:
(i) Whether the expert’s technique or theory can be tested;
(ii) Whether the technique or theory has been subject to peer review and publication;
(iii) The known or potential error of the technique or theoery when applied;
(iv)Whether the technique or theory has been generally accepted in the scientific community.
12. As it pertains to the threshold requirement of F.S.A. §90.702 that the the witness be qualified as an expert, Dr. Mathesie, as a licensed Chiropractic Physician with experience in treatment, medical billing and pricing, is qualified for the purpose of expressing an opinion regarding the reasonableness of charges for chiropractic treatment.
13. However, as to the second prong of the Daubert analysis, which shifts the analysis to the expert’s conclusions, Dr. Mathesie’s affidavit does not demonstrate that his opinions are based on sufficient facts or data. Dr. Mathesie utilizes general statements regarding data, and averages within a data set, as well as his own personal preferences to arrive at conclusory opinions. The affidavit provides general references to the fact that he and others accept certain reimbursements that are generally in line with the Medicare Part B fee schedule calculation. See Perez v. Bellsouth Telecommunications, Inc., 138 So.3d 492 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b](pure opinion testimony is inadmissible).
14. Dr. Mathesie fails to consider charges and payments accepted by DORAL, which represents the elimination of a clearly delineated element to be considered when deterimining the reasonableness of a charge. By doing so, Dr. Mathesie emphasizes his lack of reliance on sufficient facts and data as set forth by F.S.A. §627.736(5)(a), which provides in part: “In deteriming whether a charge for a particular service, treatment, or otherwise is reasonable, considerations may be given to evidence of usual and customary charges and payments accepted by the provider invovled in the dispute. (Emphasis added). The Court relies on this statutory language to set the parameters of the sufficient facts and data required to posit an acceptable expert opinion.
15. Dr. Mathesie’s affidavit further fails to establish that his opinion is the product of reliable principles and methods as his testimony erroneously relies on evidence of fee schedule reimbursements, payments from HMO and PPO carriers, and the Medicare Part B fee schedule calculated payments. Dr. Mathesie’s testimony again lacks specific data analysis, accepted methodologies of review and comparison, or any other supporting principles that approve of Dr. Mathesie’s theory that amounts charged by other area medical providers should not be considered and only Medicare and contracted HMO/PPO providers equate to what is a reasonable charge. Numerous courts have rejected this approach to a reasonableness analysis. Open Magnetic Scanning, LTD d/b/a Windsor Imaging a/a/o Jose Coto, 20 Fla. L. Weekly Supp. 824a (Fla. 17th Cir. Cnty. Ct. 2013)(Zeller, J.)(“The relevant inquiry under 627.736(5)(a)1 is the reasonableness of the provider’s charge, not the reasonableness of UNITED’s reimbursement”); New Smyrna Imaging, LLC a/a/o Francis Horgan v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 671a (Fla. 17th Cir. Cnty. Ct. 2014)(Sanders, J.). See also Coastal Radiology, LLC a/a/o Daniel Fornes v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 396a (Fla. 17th Cir. Cnty. Ct. 2014)(Lee, J.)(Affidavit of expert asserting that most insurers reimbursed bills at 200% of fee schedule, contrary to controlling authority prohibiting same absent an express policy endorsement, was a “flawed methodology”). Aside from utilizing Medicare Part B fee schedule calculator as a basis for most of his opinions, Dr. Mathesie also utilizes the October 9th, 2012, Chiropractic Economics publication, which Dr. Mathesie testifies provides average fee and reimbursement rates for “the South.” Per this publication, Dr. Mathesie testfies that, “most of [DORAL’s] charged fees for the AMA CPT codes listed in this survey exceeded the average fees in this reference.” (Emphasis added).
16. Regarding the Chiropractic Economics publication, it is irrelevant that “most of DORAL’s] charged fees for the AMA CPT codes listed in this survey exceeded the average fees in this reference” for “the South.” Firstly, the Court has before it no information as to what community constitutes “the South.” Such an undefined geographic locale could encompass many cities and places with lower costs of living than the subject Miami-Dade Community, which, in turn, would inexorably affect what the publication calculates to be “average fees.”
17. Dr. Mathesie also bases his conclusions of reasonableness on the 2009 through 2012 Annual ChiroCode Desk Book(s); the 2012 publication of which Dr. Mathesie testifies provides to insurers “a good indication of what a provider’s minimum fees could be” and that “[a] fee schedule equal to 200% of Medicare would be a ‘Better’ reimbursement that could be expected from most good insurance payers.” (Emphasis added).
18. Further, Dr. Mathesie’s arrival at the conclusion regarding fees that are average cannot impugn the reasonableness of DORAL’s charges without further application of a methodology with attached documentation to meet the requirements of the Daubert standard. As has been repeatedly found by Courts in numerous jurisdications, the determination of reasonableness does not necessarily rest with a specific amount, but is in the context of a range or spectrum, within which, various charged amounts for the same service may be deemed reasonable. A deterimination that a price is above or below average fails to create a genuine issue of material fact as to reasonableness See High Definition Mobile MRI, 22 Fla. L. Weekly Supp. 477a (Fla. 17th Cir. Cnty. Ct. 2013). Dr. Mathesie does not sufficiently explain how exceeding an average charge would render such a charge by DORAL in Miami-Dade County unreasonable. The fallibility of Dr. Mathesie’s conclusions with respect to reasonableness becomes most clear in his testimony regarding the Annual ChiroCode Desk Book. Per that publication, Dr. Mathesie testfiies that because STATE FARM pays according to the “Better” reimbursement rate (200% of Medicare), which he opines is considered to be at the highest end range of reimbursement rates, and any charge exceeding that “Better” reimbursement rate, i.e., 200% of Medicare Fee Schedule, is unreasonable. Reasonableness may not be deterimined exclusively by whether a charge exceeds 200% of the Medicare Part B Fee Schedule. See SOCC, P.L. v. State Farm Mut. Auto. Ins. Co., 95 So.3d 903 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a]; GEICO v. Virtual Imaging Services, Inc. 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]; Baker v. Aetna, 31 So.3d 842 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D438b]; Hialeah Med. Assoc. Inc. (a/a/o Ana Lexcano) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b (11th Cir. App. March 7, 2014) (Cert. Denied); 42 USC 1395y(b)(2)(A)(ii); Fla. Stat. §90.403(b).
19. For the reasons set forth above, STATE FARM has not established a genuine issue of material fact as to the reasonableness of DORAL’s charges in this matter. The Court therefore grants DORAL’s Motion for Final Summary Judgment as to the reasonableness of DORAL’s charges for the medical service.
C. RELATEDNESS OF THE SERVICES TO THE SUBJECT ACCIDENT AND THE MEDICAL NECESSITY OF SUCH SERVICES
20. The Plaintiff relies on the affidavit of Dr. Eduardo Ramirez, and attachments, submitted as a reviewing expert witness on the relation and medical necessity of the subject services. The proponent of expert witness testimony must establish the basis for its admissibility by a preponderance of the evidence. Booker v. Sumter Cty. Sheriff’s Office v. Am. Risk Servs., 166 So.3d at 193 n.1 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1291c] (citing Daubert, 509 U.S. at 592 n. 10). The court finds that the testimony of Dr. Ramirez meets the standard in Fla. Stat. §90.702, as clarified by Perez v. Bell S. Telecomms., Inc., 138 So.3d 492 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b] (citing Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed. 2d 469 (1993)). Dr. Ramirez arrives at his conclusions regarding the relatedness and medical necessity of the services in question by utilizing his expertise and an application of reliable principles. Based on his application of reliable principles to his review of all documented treatment rendered to the patient, Dr. Ramirez concludes that the services provided to the patient were related to the subject accident and were medically necessary. As such, the Plaintiff has met its prima facie showing for the purposes of the summary judgment regarding relatedness and necessity.
21. Dr. Mathesie takes issue with the necessity and relatedness of the single code billed throughout his affidavit. Dr. Mathesie’s explanation and rationale regarding his opinion that the service provded by DORAL was not medically necessary or related varies from issues regarding record keeping to allegations of a failure to properly document the treatment.
22. The PIP statute is devoid of a Plaintiff’s obligation to submit medical records in order to be paid or that the medical records maintained by the provider meet any standard for thoroughness as a precondition of payment by the insurer and the determination of medical necessity. Stated differently, no provision of the statute supports a claim that “deficient” medical records correlate to any evidence of a lack of medical necessity. Nob Hill Chiropractic a/k/a Michael Cohen, D.C., P.A. v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 195a (Fla. 17th Jud. Cir. Cnty. Ct. 2013). A claim of insufficient documentation does not form the basis for the complete denial of a medical service based on a lack of medical necessity. See Sevila Pressley Weston v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 306b (Fla. 11th Jud. Cir. (Appellate) 2013)(citing Affiliated Healthcare Center, Inc. a/a/o Francis Donaldson, as uardian of Utiva Turner, 18 Fla. L. Weekly Supp. 758a (Fla. 11th Jud. Cir. (Appellate) 2011)(reversing jury verdict that found that the medical treatment was not necessary based upon United Auto’s attack on the recordkeeping); United Auto. Ins. Co. v. Apple Med. Center, LLC a/a/o Jean Pierre Francoise, et al, 18 Fla. L. Weekly Supp. 336b (Fla. 11th Jud. Cir. (Appellate) 2011)(affirming summary judgment where United Auto’s refuting affidavits were conclusory; the court noting that “bald assertions that the physician provider’s documentation is ‘deficient’ comes with citation to law, regulation, or rule.”); Michael J. Delesparra, D.C., P.A. a/a/o Joseph Walkens v. MGA Ins. Co., Inc., 19 Fla. L. Weekly Sup. 854c (17th Jud. Cir. Cnty. Ct. 2012)(striking the insurer’s purported defense of allegedly deficient medical recordkeeping finding that “although medical provder’s are required to maintain a certain level of medical recordkeeping, it does not follow that a failure to do so renders a provider’s treatment gratuitous.”); Ali v. McCarthy, 17 Fla. L. Weekly Supp. 661a (Fla. 9th Jud. Cir. Cnty. Ct. 2010)(finding that medical recordkeeping “does not go to the efficacy of the treatment, causal connection, or reasonableness of the charges”).
23. It is clear that Dr. Mathesie has relied solely on a lack of medical record documentation to arrive at his opinion, and as a result, a genuine issue of material fact has not been created by STATE FARM as it pertains to medical necessity. See United Auto. Ins. Co. v. Apple Med. Center, LLC a/a/o Jean Pierre Francoise, et al, 18 Fla. L. Weekly Supp. 336b (Fla. 11th Jud. Cir. (Appellate) 2011) citing Heitmeyer v. Sasser, 664 So.2d 358 (Fla. 4th DCA 1995) [21 Fla. L. Weekly D39a]. Dr. Mathesie’s assertion that a lack of corresponding note or explanation means that the services should not be honored is contrary to the law cited above and is not accepted by this Court.
24. The Court also does not have any sufficient evidence before it indicating an intervening act rendering the patient’s treatment to be not related to the subject accident that would create a genuine issue of material fact. See Sevila Pressley Weston v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 306b (Fla. 11th Jud. Cir. (Appellate) 2013). The Sevila court used the same analysis regarding the lack of impact of alleged recordkeeping deficiencies on necessity and extends this proposition to relatedness meaning allegations of deficient recordkeeping do not break the chain of relatedness. Id.
FINAL JUDGMENT FOR PLAINTIFF
Based upon the foregoing, it is hereby ORDERED AND ADJUDGED that DORAL’s Motion for Final Summary Judgment is GRANTED as to the late biling affirmative defense, reasonableness, relatedness, and medical necessity of the subject service.
The Court hereby grants FINAL JUDGMENT FOR PLAINTIFF, Doral Health Center, P.A., IN THE AMOUNT OF $85.82, plus interest at the statutory rate, against DEFENDANT, State Farm Mutual Automobile Insurance Company, for which let execution issue.
This Court reservies jurisdiction for any post-verdict motions.