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18 Fla. L. Weekly Supp. 152b

Online Reference: FLWSUPP 1802MBLA

Insurance — Personal injury protection — Discovery — Depositions — No error in requiring insurer to pay expert witness fees to take deposition of treating physician — Denial of benefits — Valid medical report — Statute does not require that insurer obtain valid report in order to deny payment of claim — Error to strike peer review report presented in opposition to medical provider’s motion for summary judgment because report was not based on physician’s examination of insured

UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, vs. MAYELIN BLANCO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-543 AP and 09-542 AP (Consolidated). L.C. Case No. 07-6724 SP 25. December 10, 2010. On Appeal from the County Court for Miami-Dade County, Andrew S. Hague, Judge. Counsel: Lara J. Edelstein, United Automobile Insurance Company, for Appellant. Virginia M. Best, Lopez & Best, for Appellee.

(Before JOHNSON, PRESCOTT, and SARDUY, JJ.)

(PER CURIAM.) This is an appeal by United Automobile Insurance Company (hereinafter referred to as “United Auto”) to reverse the award of expert witness fees to the treating physician and the order granting judgment in favor of Mayelin Blanco.

The standard of review governing a trial court’s ruling on a motion for summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]; Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a].

Mayelin Blanco filed suit against United Auto for the non-payment of personal injury protection (hereinafter referred to as “PIP”) for an automobile accident occurring on May 15, 2006. United Auto denied payment of the PIP benefits based on Doctor Goldberg’s peer review report. During litigation, the trial court entered a protective order for attorney fees directing United Auto to pay expert witness fees to the treating physician, Doctor Gomez-Cortes, at a rate of three hundred and fifty dollars per hour for the taking of his deposition “with the first hour to be paid in advance on the day of deposition and all time thereafter shall be compensated on a pro-rated basis.” On November 4, 2008, the trial court heard Ms. Blanco’s Motion for Final Summary Judgment as to Liability on All Remaining Defenses, Reasonableness, Relatedness, & Medical Necessity. United Auto presented Dr. Goldberg’s peer review report in opposition to the summary judgment motion. The trial court struck Dr. Goldberg’s peer review report. Thereafter, the trial court entered final summary judgment in favor of Ms. Blanco finding “that there is no genuine issue of material fact precluding entry of summary judgment in favor of the plaintiff.”

The statute in effect at the time of the execution of the insurance contract governs any issues arising from the contract. Hassen v. State Farm Mutual Ins. Co., 674 So. 2d 106, 108 (Fla. 1996) [21 Fla. L. Weekly S102c]; Lumbermans Mutual Casualty Co. v. Ceballos, 440 So. 2d 612 (Fla. 3d DCA 1983). The effective date of the insurance policy contract between United Auto and the insured is unknown as it is not part of the record. The accident occurred on May 15, 2006; therefore, the 2006 statutes will be referenced in this appeal.

Florida Rule of Civil Procedure 1.390(c) provides that “an expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the Court may determine.” Florida Rule of Civil Procedure 1.280(b)(4) provides for the manner in which the knowledge of expert witness is obtained. “[A] treating doctor . . . while unquestionable an expert, does not acquire his knowledge for the purpose of litigation but rather simply in the course of attempting to make his patient well.” Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981). In Fittipaldi, the Appellate Court spoke to the cases of Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D1400a], Carpenter v. Alonso, 587 So. 2d 572 (Fla. 3d DCA 1991), and Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981), holding:

“treating physicians” are not subject to discovery rules governing expert witnesses because they did not acquire their expert knowledge for the purpose of litigation but rather simply in the course of attempting to make their patients well. Under such circumstances, the witness is typically testifying as the treating physician concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another. Moreover, the holdings in those cases address the categorization of treating physicians as ordinary witnesses but do not address the limits of such testimony.

Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D867a].

The Fittipaldi Court acknowledged that “it is entirely possible that even a treating physician’s testimony could cross the line into expert testimony.” Id. at FN1

There is a conflict within the Eleventh Judicial Circuit as to whether a treating physician is entitled to receive expert witness fees for his deposition testimony. Progressive Express Ins. Co. v. Professional Medical Group, Inc, 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Ct. October 14, 2003); United Auto. Ins. Co. v. Cereceda & Associates., D.C., P.A., 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Cir. Ct. August 27, 2008); United Auto. Ins. Co. v. Florida Institute for Pain, Inc., 08-553 AP (Fla. 11th Cir. Ct. December 9, 2009). However, there is nothing in the record to support the proposition that the trial court erred when it granted expert witness fees to the treating physician, especially in light of the fluctuating state of the law with regard to this issue.

In Bermudez, the Third District Court receded from the suggestion that the medical report requirement in Viles is applicable to the denial of benefits under Florida Statutes section 627.736(4)(b)¹. United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1201a]; United Auto. Ins. Co. v. Viles, 726 So. 2d 320, 321 (Fla. 3d DCA 1998) [24 Fla. L. Weekly D14a]. A valid report under Bermudez “must be factually supported by the examination and treatment records if reviewed. . . . As such, a valid report requires reliance on a physical examination of the insured prior to an insurer’s withdrawal of payment.” United Auto Ins. Co. v. Bermudez, 980 So. 2d at 1216 fn 2 citing (§ 627.736(7)(a), Fla. Stat. (2001)). A medical report issued for the withdrawal, reduction, or termination of PIP benefits must be based on a physical examination of the insured that is conducted either by the physician preparing the report or another physician who reviews the examination and treatment records of the injured. Id. In this case, the trial court correctly interpreted and analyzed Bermudez at the hearing when it made the determination to strike the peer review report and enter summary judgment. However, a progeny of cases following Bermudez have come to fruition changing the state of the law. United Auto Ins. Co. v. Santa Fe Medical Center, 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]; Partners in Health Chiropractic v. United Auto Ins. Co., 21 So. 3d 858, 860 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a]; Central Magnetic Imaging Open MRI of Plantation, Ltd. v. State Farm Fire and Cs. Ins. Co., 22 So. 3d 782 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2396a]; United Auto Ins. Co. v. Peter F. Merkle, M.D., 32 So. 3d 159 (Fla. 4th DCA 2009) [35 Fla. L. Weekly D620a]. Auto. Ins. Co. v. Metro Injury & Rehab. Center, 16 So. 3d 897 (Fla. 3d DCA July 29, 2009) [34 Fla. L. Weekly D1516a].

The Third District Court of Appeal clarified Bermudez stating section 627.736(4)(b) applied to the denial of benefits while section 627.736(7)(a) applied to the withdrawal, termination, or reduction of benefits. United Auto Ins. Co. v. Santa Fe Medical Center, 21 So. 3d at 60. Withdrawal occurs where “the insurer has paid benefits to a treating physician, and then seeks to withdraw or terminate further payment to that physician, the insurer’s actions constitute a “withdrawal” of further benefits and section 627.736(7) applies.” Partners in Health Chiropractic v. United Auto Ins. Co., 21 So. 3d 858, 860 (Fla. 3d DCA 2009). However, “[i]f an insurer either denies a claim completely, that is refuses to make any payments whatsoever, or denies one or more discrete charges or claims (whether for a treating physician’s services or otherwise), the insurer’s actions constitute a “denial” of benefits and section 627.736(4) of the Florida Statutes applies.” Id.

United Auto did not make any payments for PIP benefits; therefore, Florida Statute section 627.736(4)(b) is the applicable statutory provision. Under section 627.736(4)(b), United Auto “may contest its responsibility to pay a claim at any time, and present evidence obtained after the thirty-day period has expired.” United Auto need only provide “reasonable proof” under section 627.736(4)(b) “when defending [it’s] decision to deny payment of a claim.” § 627.736(4)(b), Fla. Stat. (2006). Statutory penalties for failing to pay the claim timely are applicable if United Auto is found to liable for the claim. January v. State Farm Mut. Ins. Co., 838 So. 2d 604, 607 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D484a] (citing Rodriguez, 808 So. 2d at 86; State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1082 (Fla. 2006) [31 Fla. L. Weekly S358a] (Anstead, J., concurring). Therefore, this Court concludes that Doctor Goldberg’s peer review report may provide the “reasonable proof” necessary to defend United Auto’s decision to deny payment of Ms. Blanco’s PIP benefits under section 627.736(4)(b), which could preclude the entrance of summary judgment. The trial court will need to determine whether the peer review report provides “reasonable proof” sufficient to preclude entry of judgment.

The judgment is hereby reversed and the award of expert witness fees is affirmed. The Court awards appellate attorney fees’ to Ms. Blanco to be determined by the trial court. This case is remanded to the trial court for proceedings consistent with this opinion.

REVERSED IN PART, AFFIRMED IN PART.

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¹§ 627.736(4)(b), Fla. Stat. (2006) provides:

Benefits; when due. — Benefits due from an insurer under ss. 627.730-627.7405 shall be primary, except that benefits received under any workers’ compensation law shall be credited against the benefits provided by subsection (1) and shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued under ss. 627.730-627.7405. When the Agency for Health Care Administration provides, pays, or becomes liable for medical assistance under the Medicaid program related to injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle, benefits under ss. 627.730-627.7405 shallbe subject to the provisions of the Medicaid program.

(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, provided that this shall not limit the introduction of evidence at trial; and the insurer shall include the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence. However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment. For the purpose of calculating the extent to which any benefits are overdue, payment shall be treated as being made on the date a draft or other valid instrument which is equivalent to payment was placed in the United States mail in a properly addressed, postpaid envelope or, if not so posted, on the date of delivery. This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.