23 Fla. L. Weekly Supp. 869a
Online Reference: FLWSUPP 2308GOODInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavits filed by insurer do not preclude summary judgment in favor of medical provider on issue of reasonableness of charge — Affidavit of claims representative that attempts to introduce documents retrieved from Internet purporting to show charges of other chiropractors in region seeks to introduce hearsay and does not raise issue of fact as to reasonableness of charge — Affidavit of expert that excludes consideration of any amounts above 200% of Medicare fee schedule is not based on sufficient facts or data and is not product of reliable principles and methodologies
NORTHSIDE CHIROPRACTIC, INC. (VERA GOODMAN), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-09914 COCE 55. January 25, 2016. Daniel J. Kanner, Judge. Counsel: Chris Tadros, Law Office of Chris Tadros, PA, Ft. Lauderdale, for Plaintiff. Gilbert Laflotte, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT ASTO REASONABLENESS OF CHARGES
THIS MATTER came before the Court on January 20, 2016, for hearing on Plaintiff’s Motion for Summary Judgment as to the Reasonableness of the Plaintiff’s Charges. Having reviewed the motions, the entire court file, and the relevant legal authorities, having heard arguments, having made a thorough review of the matters filed of record, and, having been sufficiently advised in the premises, makes the following the following findings:
This case involves the Defendant’s breach of a policy of Personal Injury Protection Insurance for failure to pay medical benefits that were due and payable. It is a settled principle of law that a movant for summary judgment has the initial burden of demonstrating the nonexistence of a genuine issue of material fact. Ramos v. Wright Superior Inc., 610 So.2d 46 (Fla. 3rd DCA 1992). In support of its Motion for Summary Judgment as to the Reasonableness of Charges the Plaintiff filed the Affidavit of Donn Crothers. Mr. Crothers testified that he is the billing manager of the Plaintiff. Mr. Crothers testified that he reviewed the Plaintiff’s bills in this case to determine whether or not they were usual and customary in the community. Mr. Crothers is familiar with what other chiropractors in the area bill and has personal experience and knowledge of the chiropractic industry due to the number of years he has worked in the chiropractic industry and billed for chiropractic facilities. Mr. Crothers testified that Plaintiff’s charges are reasonable because they are within the range of usual and customary charges for the community in which the Plaintiff operates, and are consistent with the amounts the Plaintiff usually and customarily accepts as reimbursement for its medical charges. The Court finds that the affidavit of Mr. Crothers satisfies Plaintiff’s burden as to the reasonableness of its charges. See See A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; see also State Farm Mutual Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (11th Cir. Ct. 2004) (appellate capacity); see also Pan Am Diagnostic Services, Inc. (a/a/o Fritz Telusma) vs. State Farm Mutual Automobile Insurance Company, 21 Fla. L. Weekly Supp. 200a (Fla. Jud Cir., October 1, 2013) (Judge Lee).
Once the moving party tenders competent evidence to support its motion for summary judgment, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton 370 So.2d 368 (Fla. 1979). Under Rule 1.510(e), a court may consider evidence at a summary judgment hearing only if it would be “admissible in evidence.” The Defendant only filed opposition to the Plaintiff’s Motion for Summary Judgment as it relates to the Plaintiff’s initial chiropractic examination. The Defendant did not challenge the reasonableness of any other charges. In opposition to Plaintiff’s Motion the Defendant filed the Affidavit of Roxanne Moore, the Claims Representative for the Defendant and the Affidavit of Michael Mathesie, DC. In her affidavit Ms. Moore offers no opinion as to the reasonableness of the Plaintiff’s charges but attempts to introduce documents retrieved from the internet purporting to show charges for an initial chiropractic office visit from other chiropractors in the area in which the Plaintiff rendered service. Under Fla.R.Civ.P. Rule §1.510(e), a court may consider evidence at summary judgment hearing only if it would be admissible in evidence. The Court finds that the material Ms. Moore attempted to introduce through her affidavit to be hearsay pursuant to Florida Rules of Evidence §90.801, and therefore, the information cannot be considered. Even if the information was admissible it would not raise a question of fact as to the reasonableness of the Plaintiff’s charges for its initial exam as there is generally not a single amount that is reasonable, but rather a range. If a provider’s charges fall within that range then and insurer must pay notwithstanding the possibility that other providers may charge less for the same services.
The Defendant also filed the Affidavit of Michael Mathesie, DC. In Florida the admissibility of expert testimony is governed by Florida Statute §90.702 (2013), Daubert v. Merrell Dow, 509 U.S. 579 (1993). Florida Statute §90.702 provides:
If 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.
[Emphasis added].
Dr. Mathesie opines that the Plaintiff’s charges are unreasonable is based on his 26 year career as a chiropractor, his review of thousands of medical bills and explanations of benefits, his experience as an expert in various capacities, his experience as a past member of the Florida Board of Chiropractic Medicine, and his familiarity with reimbursement rates from HMOs, PPOs, PIP insurer’s, cash pay patients, and subsidized programs such as Medicare, Medicaid and workers compensation.
The Court finds that the methodology used by Dr. Mathesie is not “based on sufficient facts or data” and not “the product of reliable principles and methodologies” as required by Florida Statute §90.702. Doctor Mathesie completely disregards consideration of evidence of usual and customary charges and payments accepted by the provider involved in this case. Similarly, he excludes consideration of any amounts above 200% of Medicare in reaching his ultimate conclusion that any amount above 200% of Medicare is not a reasonable charge. Dr. Mathesie essentially argues the Plaintiff’s charge cannot be reasonable because it exceeds 200% of the Medicare Part B rate. Dr. Mathesie’s opinion excludes any data which could cause an increase the range in which a reasonable charge could fall and, without applying any methodology, chooses only reimbursement amounts that support his opinion. The opinion that a provider’s charges are not reasonable because they exceed 200% of the Medicare rate has been rejected by numerous courts as rendering the Florida Supreme Court’s decision in the Virtual case meaningless. Coastal Wellness Centers, Inc. (Constantin Vincent) vs. State Farm Fire & Casualty Company, (Fla. 17 Judicial Circuit, Broward County, April 1, 2014) (Lee, J.) referencing: GEICO General Insurance Company v. Virtual Imaging Services, Inc., 141 So.3d 147, 3 (Fla. July 3, 2013) [38 Fla. L. Weekly S517a]; citing: Hialeah Medical Assoc., Inc. v. United Automobile Ins. Co., Opinion, Case No. 12-229 AP (11th Cir. Ct. Mar. 7, 2014) [21 Fla. L. Weekly Supp. 487b] (appellate capacity); State Farm Mutual Automobile Ins. Co. v. Imaging Centers of Pensacola, Inc., Order Affirming Lower Court’s Orders and Judgments, Case No. 2012-AP-52 (1st Cir. Ct. Mar. 3, 2014) [21 Fla. L. Weekly Supp. 979a] (appellate capacity); United Automobile Ins. Co. v. Hallandale Open MRI, Inc., Opinion, Case No. 1 19662 CACE (17th Cir. Ct. 2013) (appellate capacity); Millennium Radiology LLC v. United Automobile Ins. Co., Order Granting Plaintiff’s Amended Motion for Summary Judgment, Case No. 11-17736 COCE (Broward Cty. Ct. 2013). Therefore, Dr. Mathesie does not qualify as an expert pursuant to Fla. Stat. §90.702(1)(2013).
For the reasons stated above, the Defendant has not come forward with any competent, admissible evidence to rebut Plaintiff’s prima facia showing that it’s charges reasonable. Accordingly, it is hereby
ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment as to the Reasonableness of the Plaintiff’s Charges is GRANTED