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Filing # 123215841 E-Filed 03/16/2021 06:17:53 PM
IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO: 2014-002253-CC-26
SECTION: SD05
JUDGE: Michaelle Gonzalez-Paulson
Central Therapy Center, Inc.
Plaintiff(s) / Petitioner(s)
vs.
Progressive Select Insurance Company
Defendant(s) / Respondent(s)
____________________________/
ORDER ON DEFENDANT’S MOTION FOR RECONSIDERATION OF THE AUGUST
13, 2020 ORDER GRANTING PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE, having comes before this Court upon Defendant’s Motion For
Reconsideration Of The August 13, 2020 Order Granting Plaintiff’s Motions For Summary
Judgment, and the Court having heard argument of counsel, it is hereby,
ORDERED AND ADJUDGED, that Defendant’s Motion is for Reconsideration is
GRANTED IN PART, the Court's prior order of August 13, 2020 is VACATED, and the
following order is ENTERED in its place.
RULING:
This Court entered an order granting Plaintiff’s Motions for Summary Judgment
regarding reasonableness, relatedness and necessity; and Defendant’s Record Keeping
affirmative defenses. Defendant’s Motion for Reconsideration was filed on September 1, 2020,
more than 15 days from the date of the order; therefore, this Court considers Defendant’s motion
under its inherent authority to review its own orders, and not under Fla. R. Civ. P. 1.530. Arnold
v. Massebeau, 493 So. 2d 91, 92 (Fla. 5th DCA 1986).
Case No: 2014-002253-CC-26 Page 1 of 9
In a PIP case such as this, the Plaintiff bears the burden of proving that the services it
bills for are for medically necessary services that are related to an automobile accident. “The
status of services as ‘medically necessary’ must be proffered by expert medical testimony in
order to establish a prima facie case.” Affiliated Healthcare Centers, Inc. v. United Auto.
Ins. Co., 18 Fla. L. Weekly Supp. 758a (Fla. 11th Cir. App. 2011). “The party seeking to contest
an expert opinion on a medical diagnosis must either: (1) present countervailing expert
testimony; (2) severely impeach the proponent's expert; or (3) present other evidence which
creates a direct conflict with the proponent's evidence, in order to carry the issue to the jury”. Id.
This court notes that the Florida Standard Jury Instruction regarding Medical Necessity
state:
“Medically necessary” refers to a medical service or supply that a
prudent physician would provide for the purpose of preventing,
diagnosing, or treating an illness, injury, disease, or symptom in a manner
that is:
(1) In accordance with generally accepted standards of medical
practice;
(2) Clinically appropriate in terms of type, frequency, extent, site, and
duration; and,
(3) Not primarily for the convenience of the patient, physician, or
other health care provider.
Plaintiff relied upon the affidavit of Dr. Kevin J. Wood, who reviewed the medical
records and bills and opined that Plaintiff’s treatment was medically necessary to treat injuries
related to the underlying October 25, 213 accident. Dr. Wood opines that the injuries are related
Case No: 2014-002253-CC-26 Page 2 of 9
because they are the type of injuries typically sustained by an individual in a vehicular accident
and there is no evidence of an intervening cause for the injuries. Dr. Wood opines that the
treatment provided by Plaintiff was medically necessary with the exception of the medical
examinations which should have been reduced to 99203 from 99204, and 99123 from 99214.
Plaintiff agreed to and adopted Dr. Wood’s opinions as its own on the record. These opinions are
bolstered by the Claimant’s testimony confirming injuries and improvements from Plaintiff’s
treatments. See Eriche Garcia Dep. P. 38, May 10th, 2016.
On the other hand, Defendant filed the affidavit of its Expert, Dr. Jenkins. Dr. Jenkins
opines that the treatment rendered by Plaintiff “is not reasonable, related to the subject crash, and
medically necessary [“RRN”] as the medical documentation does not indicate what was done or
why it was done . . . .” Dr. Jenkins states that Plaintiff’s treatment was not RRN based on various
issues he notes with the documents. For example, Dr. Jenkins notes that the medical exams failed
to indicate that blood pressure was taken, that the reflex test fails to state the degree of positive
findings, various codes fail to indicate what was actually done, and that the records are on a “pre-
printed check-off form.” Essentially, Dr. Jenkins does not take issue with the medical treatment
provided or documented in the file, but with the documentation itself. Aside from Dr. Jenkin’s
conclusions, he makes no factual allegations about causation or relatedness in his affidavit.
The law is well settled that affidavits supported by mere conclusions without setting
forth any factual basis supporting those conclusions are insufficient to create issues of fact.
Jones v. Florida Workers' Compensation JUA, 793 So.2d 978 (Fla. 2d DCA 2001);
Heitmeyer v. Sasser, 664 So.2d 358 (Fla. 4th DCA 1995). Additionally, the factual alegations
within an affidavit must logically support those conclusions. Id.
In this case, Plaintiff has met its burden in establishing that the services rendered were
related and necessary. Dr. Wood’s affidavit describes the types of injuries sustained by Claimant
and the purpose of the services in treating those injuries. Additionally, the testimony from the
Case No: 2014-002253-CC-26 Page 3 of 9
Claimant himself stating he was injured and that the treatment, in combination with medicine
assisted in his recovery establish the medical necessity and relatedness of the injures and
treatments. The burden then shifts to Defendant to impeach Dr. Wood or create a fact issue.
Defendant did not severely impeach Dr. Wood, and its attempt to create a fact issue fails
because Dr. Jenkin’s affidavit fails to logically connect its factual assertions with the legal issue
before the court: relatedness and necessity. Instead, Dr. Jenkin’s affidavit is concerned
exclusively with issues within the medical records, not the medical treatment at the heart of the
relatedness/necessity determination. This Court is not the first to find such faults in an Affidavit
of Dr. Jenkins. B&a diagnostic, Inc., a/a/o Ricardo Rodriguez, v. Progressive American
Insurance Company, 24 Fla. L. Weekly Supp. 851a (Miami Dade County Court, July 16,
2013); Dr. Kim Reddick, D.C., P.A. a/a/o Patricia Camblin v. State Farm Mut. Auto. Ins.
Co., 19 Fla. L. Weekly Supp. 487b (Volusia County Court, February 20, 2012).
It was recently settled that recordkeeping is a valid affirmative defense recognized in the
11th Judicial Circuit. State Farm Mut. Auto. Co., v. Gables Insurance Recovery, Inc.,
a/a/o Jose Seota, 21 Fla. L. Weekly Supp. 489a (Fla. 11th Cir. Ct. March 26, 2014)
(appellate). However, an issue of fact regarding recordkeeping, by itself, fails to create an issue
of fact regarding relatedness and necessity. Florida Spine and Rehabilitation, LLC. V.
Progressive Select Insurnce Company, 27 Fla. L. Weekly Supp. 1044a (Fla. Broward
County Court, Jan. 22, 2020), cf State Farm Fire and Casualty Co., v. Central Magnetic
Imaging Open MRI of Plantation, LTD., a/a/o Evelyn Deshommes, 21 Fla. L. Weekly
Supp. 239a (Fla. 17th Cir. Ct. Oct. 25, 2013) (appellate).
In the Evelyn Deshommes case cited above, the 17th Judicial Circuit heard an appeal of
final summary judgment in favor of the medical provider. The defendant in that case had
similarly relied upon an affidavit and deposition from Dr. Jenkins to contest RRN. However, in
that case Dr. Jenkins called into question the necessity of the MRI services 90 days after the
Case No: 2014-002253-CC-26 Page 4 of 9
treatment had started. Id. (“Specifically, Dr. Jenkins opined that the MRI at Central Magnetic
was not necessary after ninety days of treatment at Advanced Chiropractic, combined with the
absence of any radicular complaints.”). Dr. Jenkins’ testimony regarding the 90 days created a
distinguishable connection between his conclusions and medical necessity that is lacking in the
case before this Court.
Here, Dr. Jenkin’s affidavit and opinions fail to address the logical relation between his
conclusions, the services provide, and medical necessity. In the Deshommes case, there is a
logical nexus between Dr. Jenkin’s conclusions and RRN because the 90 days of treatments prior
to the MRI call into question the need for those diagnostic services at all. In this case, Dr. Jenkins
makes no such allegations in his affidavit. Instead, Dr. Jenkins conclusions are again couched
solely within issues with the medical records, not the medical treatments or testing. See Jenkins
Aff, ¶ 9 – 20, July 15, 2020. (“[Various radiological exams] were billed on November 5, 2013.
The medical records completely fail to discuss why the tests were performed and fail to explain
any role in the diagnosis or treatment of the patient.”). Compared to the jury instructions above,
Dr. Jenkins’ opinions are silent regarding the medical appropriateness of the services, as
referenced in subsection 2 and 3 of medical necessity defined above.
Additionally, Defendant relies on alleged evidence regarding fraudulent acts allegedly
committed by Plaintiff. As Defendant alleges, any services that were not actually rendered,
cannot be reasonable, related or medically necessary. This Court did not and needs not address
this argument in the context of RRN, because even after granting this motion, should Defendant
prevail on its fraud assertions, none of the services will be compensable. Chiropractic One, Inc.
v. State Farm Mut. Auto Ins. Co., 825 So. 3d 871 (Fla. 5th DCA 2012). Defendant argues that
the language of Chiropractic One, requires this court to Deny Plaintiff’s Motion. (“[a]ny
knowingly misleading or false charge, by definition, is unreasonable, not medically necessary,
and in excess of permitted amounts.”). However, the cited language is dicta and is taken out of
Case No: 2014-002253-CC-26 Page 5 of 9
the context of the 5th’s holding; essentially that fraud in part is fraud in whole.
This Court has an inherent authority to control its trial procedure to effectuate an
economic and reasonable trial of the relevant issues, so long as there is no prejudice to either
party. See Feeney v. State, 359 So.2d 569, 570 (Fla. 5th DCA 1987) (“The law is, and must
be, dynamic and not static. Procedural law is no exception. Experience comes about as a result of
experiment. A trial judge has very broad discretion in the procedural conduct of trials. In the
absence of demonstrated prejudice we are loathe to disapprove the novel procedure employed
sub judice.”), see alsoMicroclimate Sales Co., Inc., v. Doherty, 731 So. 2d 856, 858-59 (Fla.
5th DCA 1999) (“we conclude that the issues raised by the defamation claim are distinct from
those at bar, and that the order of bifurcation did not raise the threat of inconsistent verdicts or
prejudice to either party.”). Therefore, this order is, if anything, a determination that Plaintiff has
met its burden and needs not put on a case, and instead Defendant can go forward on its fraud
defense. If this court were to adopt Defendant’s arguments, the result would be a silly, confusing
and an unnecessary additional step at trial: with the evidence already introduced Plaintiff has
established that the services were RRN, assuming admissibility, Defendant would introduce its
fraud evidence and a question would go to the jury. If the jury determines there was fraud, then
RRN is irrelevant under Chiropractic One. 825 So. 3d 871. If the jury determines there is no
fraud, then there is no competent relevant evidence currently before the court against RRN and
the verdict must favor Plaintiff. Fraud and RRN, in this context, are therefore separate issues, and
any conflation of these arguments would only serve to confuse the issues. Through this analysis,
the Court determines that neither party is prejudiced in any way, Defendant retains its ability to
pursue its arguments through its affirmative defenses regarding Fraud, and the court removes an
unnecessary step from trial. Therefore, Plaintiff’s motion for Summary Judgment as to
relatedness and medical necessity are granted.
Notwithstanding the prejudice analysis above, this Court makes no determinations as to
Case No: 2014-002253-CC-26 Page 6 of 9
the admissibility of the evidence proposed by Defendant, nor Defendant’s fraud arguments.
As noted above, the caselaw regarding recordkeeping affirmative defenses was
previously split amongst the trial courts of Florida. This is no longer the case and this Court
recognizes that issue as a valid affirmative defense. . State Farm Mut. Auto. Co., v. Gables
Insurance Recovery, Inc., a/a/o Jose Seota, 21 Fla. L. Weekly Supp. 489a (Fla. 11th Cir. Ct.
March 26, 2014) (appellate). When reviewing such medical records for compliance with
recordkeeping standards, the court must examine the records as a whole. Christian v. Dep’t of
health Board of Chiropractic Medicine, 161 So.3d 416, 420 (Fla. 2d DCA, 2014) (“We
conclude that, in context, the plain meaning of the term “medical record” refers to the record
taken as a whole and not that the notes for a particular day must again justify the treatment
provided.”) (emphasis in original). Florida’s minimal record keeping standards for Chiropractic
Physicians are outlined in F.A.C. 64b8-9.003 which states in relevant part:
(2) A licensed physician shall maintain patient medical records in English, in a
legible manner and with sufficient detail to clearly demonstrate why the course of
treatment was undertaken.
(3) The medical record shall contain sufficient information to identify the
patient, support the diagnosis, justify the treatment and document the course and
results of treatment accurately, by including, at a minimum, patient histories;
examination results; test results; records of drugs prescribed, dispensed, or
administered; reports of consultations and hospitalizations; and copies of records
or reports or other documentation obtained from other health care practitioners at
the request of the physician and relied upon by the physician in determining the
appropriate treatment of the patient.
(4) Medical records in which compounded medications are administered to a
patient in an office setting must contain, at a minimum, the following information:
(a) The name and concentration of medication administered;
(b) The lot number of the medication administered;
(c) The expiration date of the medication administered;
(d) The name of the compounding pharmacy or manufacturer;
Case No: 2014-002253-CC-26 Page 7 of 9
(e) The site of administration on the patient;
(f) The amount of medication administered; and,
(g) The date medication administered.
(5) All entries made into the medical records shall be accurately dated and
timed. Late entries are permitted, but must be clearly and accurately noted as late
entries and dated and timed accurately when they are entered into the record.
However, office records do not need to be timed, just dated.
In this case, Plaintiff relies upon the affidavit of Dr. Kevin J. Wood, filed with the court
on September 16, 2019. Dr. Wood opines that the records contain sufficient information to
comply with and otherwise do comply with the minimal record keeping standards under F.A.C.
64B8-9.003 and Fla. Stat. 458.331(1)(m). Defendant relies upon the affidavit of Dr. Jenkins
described above. Dr. Jenkins notes various issues with the medical records missing necessary
information in line with the general medical standards. These affidavits are sufficient to create an
issue of fact and on their merits should be presented to a jury.
Therefore, Plaintiff’s motion for Summary Judgment as to Relatedness and Medical Necessity
are GRANTED, and Plaintiff's Motion for Summary Judgment as to Reasonableness and as to
Defendant's Record Keeping Affirmative Defense are DENIED.
DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 16th day of March,
2021.
2014-002253-CC-26 03-16-2021 6:08 PM
Hon. Michaelle Gonzalez-Paulson
COUNTY COURT JUDGE
Electronically Signed
Case No: 2014-002253-CC-26 Page 8 of 9
No Further Judicial Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT
Electronically Served:
Andrew W. Edwards Jr. Esquire., AndrewEdwardsJr@MiamiSAO.com
Cliff T. Jones, Esquire, cjones@bmulaw.com
Cliff T. Jones, Esquire, ojaquez@bmulaw.com
David A. Nunez, Esquire, david@nunez-law.com
Efilemadeeasy Batch Admin, courtservice@efilemadeeasy.com
Jeffrey M Kolokoff, notice66@bmulaw.com
Lina Husseini, lhusseini@chslaw.net
Maria E. Corredor Esq., mcorredor@chslaw.net
Maria E. Corredor Esq., service@corredorhusseinilaw.com
Maria Elena Corredor, service@corredorhusseinilaw.com
Maury L Udell, notice66@bmulaw.com
Maury L Udell, ojaquez@bmulaw.com
Megan Elizabeth Pearl, mpearl@bmulaw.com
Randall B Bishop, pleadings@fednat.com
Randall B Bishop, rbishop@fednat.com
Vanessa Banni, vbanni@chslaw.net
Yankell Francisco Benavides Benavides, ybenavides@chslaw.net
Yankell Francisco Benavides Benavides, ybenavides@chslaw.net
Zoila Gutierrez, zgutierrez@chslaw.net
Physically Served:
Case No: 2014-002253-CC-26 Page 9 of 9
Preview
Filing # 123215841 E-Filed 03/16/2021 06:17:53 PM IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO: 2014-002253-CC-26 SECTION: SD05 JUDGE: Michaelle Gonzalez-Paulson Central Therapy Center, Inc. Plaintiff(s) / Petitioner(s) vs. Progressive Select Insurance Company Defendant(s) / Respondent(s) ____________________________/ ORDER ON DEFENDANT’S MOTION FOR RECONSIDERATION OF THE AUGUST 13, 2020 ORDER GRANTING PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT THIS CAUSE, having comes before this Court upon Defendant’s Motion For Reconsideration Of The August 13, 2020 Order Granting Plaintiff’s Motions For Summary Judgment, and the Court having heard argument of counsel, it is hereby, ORDERED AND ADJUDGED, that Defendant’s Motion is for Reconsideration is GRANTED IN PART, the Court's prior order of August 13, 2020 is VACATED, and the following order is ENTERED in its place. RULING: This Court entered an order granting Plaintiff’s Motions for Summary Judgment regarding reasonableness, relatedness and necessity; and Defendant’s Record Keeping affirmative defenses. Defendant’s Motion for Reconsideration was filed on September 1, 2020, more than 15 days from the date of the order; therefore, this Court considers Defendant’s motion under its inherent authority to review its own orders, and not under Fla. R. Civ. P. 1.530. Arnold v. Massebeau, 493 So. 2d 91, 92 (Fla. 5th DCA 1986). Case No: 2014-002253-CC-26 Page 1 of 9 In a PIP case such as this, the Plaintiff bears the burden of proving that the services it bills for are for medically necessary services that are related to an automobile accident. “The status of services as ‘medically necessary’ must be proffered by expert medical testimony in order to establish a prima facie case.” Affiliated Healthcare Centers, Inc. v. United Auto. Ins. Co., 18 Fla. L. Weekly Supp. 758a (Fla. 11th Cir. App. 2011). “The party seeking to contest an expert opinion on a medical diagnosis must either: (1) present countervailing expert testimony; (2) severely impeach the proponent's expert; or (3) present other evidence which creates a direct conflict with the proponent's evidence, in order to carry the issue to the jury”. Id. This court notes that the Florida Standard Jury Instruction regarding Medical Necessity state: “Medically necessary” refers to a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is: (1) In accordance with generally accepted standards of medical practice; (2) Clinically appropriate in terms of type, frequency, extent, site, and duration; and, (3) Not primarily for the convenience of the patient, physician, or other health care provider. Plaintiff relied upon the affidavit of Dr. Kevin J. Wood, who reviewed the medical records and bills and opined that Plaintiff’s treatment was medically necessary to treat injuries related to the underlying October 25, 213 accident. Dr. Wood opines that the injuries are related Case No: 2014-002253-CC-26 Page 2 of 9 because they are the type of injuries typically sustained by an individual in a vehicular accident and there is no evidence of an intervening cause for the injuries. Dr. Wood opines that the treatment provided by Plaintiff was medically necessary with the exception of the medical examinations which should have been reduced to 99203 from 99204, and 99123 from 99214. Plaintiff agreed to and adopted Dr. Wood’s opinions as its own on the record. These opinions are bolstered by the Claimant’s testimony confirming injuries and improvements from Plaintiff’s treatments. See Eriche Garcia Dep. P. 38, May 10th, 2016. On the other hand, Defendant filed the affidavit of its Expert, Dr. Jenkins. Dr. Jenkins opines that the treatment rendered by Plaintiff “is not reasonable, related to the subject crash, and medically necessary [“RRN”] as the medical documentation does not indicate what was done or why it was done . . . .” Dr. Jenkins states that Plaintiff’s treatment was not RRN based on various issues he notes with the documents. For example, Dr. Jenkins notes that the medical exams failed to indicate that blood pressure was taken, that the reflex test fails to state the degree of positive findings, various codes fail to indicate what was actually done, and that the records are on a “pre- printed check-off form.” Essentially, Dr. Jenkins does not take issue with the medical treatment provided or documented in the file, but with the documentation itself. Aside from Dr. Jenkin’s conclusions, he makes no factual allegations about causation or relatedness in his affidavit. The law is well settled that affidavits supported by mere conclusions without setting forth any factual basis supporting those conclusions are insufficient to create issues of fact. Jones v. Florida Workers' Compensation JUA, 793 So.2d 978 (Fla. 2d DCA 2001); Heitmeyer v. Sasser, 664 So.2d 358 (Fla. 4th DCA 1995). Additionally, the factual alegations within an affidavit must logically support those conclusions. Id. In this case, Plaintiff has met its burden in establishing that the services rendered were related and necessary. Dr. Wood’s affidavit describes the types of injuries sustained by Claimant and the purpose of the services in treating those injuries. Additionally, the testimony from the Case No: 2014-002253-CC-26 Page 3 of 9 Claimant himself stating he was injured and that the treatment, in combination with medicine assisted in his recovery establish the medical necessity and relatedness of the injures and treatments. The burden then shifts to Defendant to impeach Dr. Wood or create a fact issue. Defendant did not severely impeach Dr. Wood, and its attempt to create a fact issue fails because Dr. Jenkin’s affidavit fails to logically connect its factual assertions with the legal issue before the court: relatedness and necessity. Instead, Dr. Jenkin’s affidavit is concerned exclusively with issues within the medical records, not the medical treatment at the heart of the relatedness/necessity determination. This Court is not the first to find such faults in an Affidavit of Dr. Jenkins. B&a diagnostic, Inc., a/a/o Ricardo Rodriguez, v. Progressive American Insurance Company, 24 Fla. L. Weekly Supp. 851a (Miami Dade County Court, July 16, 2013); Dr. Kim Reddick, D.C., P.A. a/a/o Patricia Camblin v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 487b (Volusia County Court, February 20, 2012). It was recently settled that recordkeeping is a valid affirmative defense recognized in the 11th Judicial Circuit. State Farm Mut. Auto. Co., v. Gables Insurance Recovery, Inc., a/a/o Jose Seota, 21 Fla. L. Weekly Supp. 489a (Fla. 11th Cir. Ct. March 26, 2014) (appellate). However, an issue of fact regarding recordkeeping, by itself, fails to create an issue of fact regarding relatedness and necessity. Florida Spine and Rehabilitation, LLC. V. Progressive Select Insurnce Company, 27 Fla. L. Weekly Supp. 1044a (Fla. Broward County Court, Jan. 22, 2020), cf State Farm Fire and Casualty Co., v. Central Magnetic Imaging Open MRI of Plantation, LTD., a/a/o Evelyn Deshommes, 21 Fla. L. Weekly Supp. 239a (Fla. 17th Cir. Ct. Oct. 25, 2013) (appellate). In the Evelyn Deshommes case cited above, the 17th Judicial Circuit heard an appeal of final summary judgment in favor of the medical provider. The defendant in that case had similarly relied upon an affidavit and deposition from Dr. Jenkins to contest RRN. However, in that case Dr. Jenkins called into question the necessity of the MRI services 90 days after the Case No: 2014-002253-CC-26 Page 4 of 9 treatment had started. Id. (“Specifically, Dr. Jenkins opined that the MRI at Central Magnetic was not necessary after ninety days of treatment at Advanced Chiropractic, combined with the absence of any radicular complaints.”). Dr. Jenkins’ testimony regarding the 90 days created a distinguishable connection between his conclusions and medical necessity that is lacking in the case before this Court. Here, Dr. Jenkin’s affidavit and opinions fail to address the logical relation between his conclusions, the services provide, and medical necessity. In the Deshommes case, there is a logical nexus between Dr. Jenkin’s conclusions and RRN because the 90 days of treatments prior to the MRI call into question the need for those diagnostic services at all. In this case, Dr. Jenkins makes no such allegations in his affidavit. Instead, Dr. Jenkins conclusions are again couched solely within issues with the medical records, not the medical treatments or testing. See Jenkins Aff, ¶ 9 – 20, July 15, 2020. (“[Various radiological exams] were billed on November 5, 2013. The medical records completely fail to discuss why the tests were performed and fail to explain any role in the diagnosis or treatment of the patient.”). Compared to the jury instructions above, Dr. Jenkins’ opinions are silent regarding the medical appropriateness of the services, as referenced in subsection 2 and 3 of medical necessity defined above. Additionally, Defendant relies on alleged evidence regarding fraudulent acts allegedly committed by Plaintiff. As Defendant alleges, any services that were not actually rendered, cannot be reasonable, related or medically necessary. This Court did not and needs not address this argument in the context of RRN, because even after granting this motion, should Defendant prevail on its fraud assertions, none of the services will be compensable. Chiropractic One, Inc. v. State Farm Mut. Auto Ins. Co., 825 So. 3d 871 (Fla. 5th DCA 2012). Defendant argues that the language of Chiropractic One, requires this court to Deny Plaintiff’s Motion. (“[a]ny knowingly misleading or false charge, by definition, is unreasonable, not medically necessary, and in excess of permitted amounts.”). However, the cited language is dicta and is taken out of Case No: 2014-002253-CC-26 Page 5 of 9 the context of the 5th’s holding; essentially that fraud in part is fraud in whole. This Court has an inherent authority to control its trial procedure to effectuate an economic and reasonable trial of the relevant issues, so long as there is no prejudice to either party. See Feeney v. State, 359 So.2d 569, 570 (Fla. 5th DCA 1987) (“The law is, and must be, dynamic and not static. Procedural law is no exception. Experience comes about as a result of experiment. A trial judge has very broad discretion in the procedural conduct of trials. In the absence of demonstrated prejudice we are loathe to disapprove the novel procedure employed sub judice.”), see alsoMicroclimate Sales Co., Inc., v. Doherty, 731 So. 2d 856, 858-59 (Fla. 5th DCA 1999) (“we conclude that the issues raised by the defamation claim are distinct from those at bar, and that the order of bifurcation did not raise the threat of inconsistent verdicts or prejudice to either party.”). Therefore, this order is, if anything, a determination that Plaintiff has met its burden and needs not put on a case, and instead Defendant can go forward on its fraud defense. If this court were to adopt Defendant’s arguments, the result would be a silly, confusing and an unnecessary additional step at trial: with the evidence already introduced Plaintiff has established that the services were RRN, assuming admissibility, Defendant would introduce its fraud evidence and a question would go to the jury. If the jury determines there was fraud, then RRN is irrelevant under Chiropractic One. 825 So. 3d 871. If the jury determines there is no fraud, then there is no competent relevant evidence currently before the court against RRN and the verdict must favor Plaintiff. Fraud and RRN, in this context, are therefore separate issues, and any conflation of these arguments would only serve to confuse the issues. Through this analysis, the Court determines that neither party is prejudiced in any way, Defendant retains its ability to pursue its arguments through its affirmative defenses regarding Fraud, and the court removes an unnecessary step from trial. Therefore, Plaintiff’s motion for Summary Judgment as to relatedness and medical necessity are granted. Notwithstanding the prejudice analysis above, this Court makes no determinations as to Case No: 2014-002253-CC-26 Page 6 of 9 the admissibility of the evidence proposed by Defendant, nor Defendant’s fraud arguments. As noted above, the caselaw regarding recordkeeping affirmative defenses was previously split amongst the trial courts of Florida. This is no longer the case and this Court recognizes that issue as a valid affirmative defense. . State Farm Mut. Auto. Co., v. Gables Insurance Recovery, Inc., a/a/o Jose Seota, 21 Fla. L. Weekly Supp. 489a (Fla. 11th Cir. Ct. March 26, 2014) (appellate). When reviewing such medical records for compliance with recordkeeping standards, the court must examine the records as a whole. Christian v. Dep’t of health Board of Chiropractic Medicine, 161 So.3d 416, 420 (Fla. 2d DCA, 2014) (“We conclude that, in context, the plain meaning of the term “medical record” refers to the record taken as a whole and not that the notes for a particular day must again justify the treatment provided.”) (emphasis in original). Florida’s minimal record keeping standards for Chiropractic Physicians are outlined in F.A.C. 64b8-9.003 which states in relevant part: (2) A licensed physician shall maintain patient medical records in English, in a legible manner and with sufficient detail to clearly demonstrate why the course of treatment was undertaken. (3) The medical record shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient. (4) Medical records in which compounded medications are administered to a patient in an office setting must contain, at a minimum, the following information: (a) The name and concentration of medication administered; (b) The lot number of the medication administered; (c) The expiration date of the medication administered; (d) The name of the compounding pharmacy or manufacturer; Case No: 2014-002253-CC-26 Page 7 of 9 (e) The site of administration on the patient; (f) The amount of medication administered; and, (g) The date medication administered. (5) All entries made into the medical records shall be accurately dated and timed. Late entries are permitted, but must be clearly and accurately noted as late entries and dated and timed accurately when they are entered into the record. However, office records do not need to be timed, just dated. In this case, Plaintiff relies upon the affidavit of Dr. Kevin J. Wood, filed with the court on September 16, 2019. Dr. Wood opines that the records contain sufficient information to comply with and otherwise do comply with the minimal record keeping standards under F.A.C. 64B8-9.003 and Fla. Stat. 458.331(1)(m). Defendant relies upon the affidavit of Dr. Jenkins described above. Dr. Jenkins notes various issues with the medical records missing necessary information in line with the general medical standards. These affidavits are sufficient to create an issue of fact and on their merits should be presented to a jury. Therefore, Plaintiff’s motion for Summary Judgment as to Relatedness and Medical Necessity are GRANTED, and Plaintiff's Motion for Summary Judgment as to Reasonableness and as to Defendant's Record Keeping Affirmative Defense are DENIED. DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 16th day of March, 2021. 2014-002253-CC-26 03-16-2021 6:08 PM Hon. Michaelle Gonzalez-Paulson COUNTY COURT JUDGE Electronically Signed Case No: 2014-002253-CC-26 Page 8 of 9 No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT Electronically Served: Andrew W. Edwards Jr. Esquire., AndrewEdwardsJr@MiamiSAO.com Cliff T. Jones, Esquire, cjones@bmulaw.com Cliff T. Jones, Esquire, ojaquez@bmulaw.com David A. Nunez, Esquire, david@nunez-law.com Efilemadeeasy Batch Admin, courtservice@efilemadeeasy.com Jeffrey M Kolokoff, notice66@bmulaw.com Lina Husseini, lhusseini@chslaw.net Maria E. Corredor Esq., mcorredor@chslaw.net Maria E. Corredor Esq., service@corredorhusseinilaw.com Maria Elena Corredor, service@corredorhusseinilaw.com Maury L Udell, notice66@bmulaw.com Maury L Udell, ojaquez@bmulaw.com Megan Elizabeth Pearl, mpearl@bmulaw.com Randall B Bishop, pleadings@fednat.com Randall B Bishop, rbishop@fednat.com Vanessa Banni, vbanni@chslaw.net Yankell Francisco Benavides Benavides, ybenavides@chslaw.net Yankell Francisco Benavides Benavides, ybenavides@chslaw.net Zoila Gutierrez, zgutierrez@chslaw.net Physically Served: Case No: 2014-002253-CC-26 Page 9 of 9