10 Fla. L. Weekly Supp. 1057a
Insurance — Personal injury protection — Discovery — Objections to requests to produce documents, requests for admissions, and interrogatories seeking information concerning databases and computer programs utilized by insurer to determine reasonableness of charges and amounts allowed on grounds that discovery seeks proprietary materials, confidential research, commercial information, and trade secrets are overruled — If insurer fails to completely respond to discovery requests, it will be prohibited from relying on or utilizing computer software in its defense
JEFFREY B. FRIEDMAN, M.D., P.A. As assignee of JULIA MARINO, Plaintiff, vs. PROGRESSIVE CONSUMERS INSURANCE COMPANY, a corporation authorized and doing business in the State of Florida, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-811-F. September 24, 2003. Mark E. Herr, Judge. Counsel: Roy J. Smith, IV, Weiss Legal Group, P.A., Maitland, for Plaintiff. J. William Webb, Orlando, for Defendant.
ORDER GRANTING PLAINTIFF’S AMENDED MOTION TO COMPEL BETTER RESPONSES TO DISCOVERY
THIS CAUSE having come on to be heard on September 18, 2003 regarding Plaintiff’s Amended Motion to Compel Better Responses to Discovery, Defendant’s Objections to Plaintiff’s Second Request for Admissions, Defendant’s Objections to Second Request to Produce, Defendant’s Objections to Second Interrogatories, and Defendant’s Objection to Taking Deposition Duces Tecum and the Court having reviewed the pleadings on file and after hearing oral argument by counsel, the Court finds the following facts:
1. On May 15, 2003, Plaintiff served Plaintiff’s Second Request to Produce seeking the following information:
A. Any and all documents in the possession of Defendant which indicate or tend to prove that the amount billed by Plaintiff for health care services rendered exceeded the usual, customary, and reasonable amount for such services within the geographic region in which the services were rendered.
B. All guidelines, policies, procedures, or protocols which Defendant followed or adhered to, or otherwise used in determining that the amount billed by Plaintiff for health care services exceeded the usual, customary, and reasonable amount for such services within the geographic region in which the services were rendered.
C. Any manuals, guidelines, office policies, practices, procedures, computer programs or other documents, programs, memorandum or notes, whether in printed or other form, including electronic medium of any type, regarding the computer databases used to determine the reasonableness of charges or medical necessity of health care services provided by Plaintiff.
D. Any manuals, guidelines, office policies, practices, procedures, computer programs or other documents, programs, memorandum or notes, whether in printed or other form, including electronic medium of any type, regarding the computer database used to determine the regional charges for health care services provided to personal injury protection claimants.
E. Any and all authorities, seminar notes, documents, notes, memorandum, governmental data, Health Care Finance Administration data, or electronic data utilized in the development and maintenance of the statistical model used to determine the appropriate or reasonable charge for health care services provided to personal injury protection claimants, including the process for creating the statistical model; the composition, and results, of any survey(s) used to create the statistical model; and the basis of, or guidelines for, determining or creating the geographical boundaries of any regions used to determine the amount of fees to be paid to any health care providers for services rendered to personal injury protection claimants.
F. Any and all documentation, correspondence, memorandum, brochures, audio or video tapes, or electronic medium regarding the factual basis by which Defendant created or procured the computer program it used to make a determination as to the reasonableness of the cost and/or medical necessity of health care services provided by Plaintiff, including the number of and type of health care providers that form the basis for the statistical model used, the specific boundaries of the geographic region, and the training and qualifications of medical providers included in the survey or statistical model.
G. If any claims data used to determine the reasonableness of the cost of any health care service provided by Plaintiff is acquired through any data contribution program that includes any insurers, medical providers, or provider billing services, provide a copy of any contracts, guidelines, reporting procedures, information verification procedures and/or any other documents, notes, memorandum or items regulating or describing how this information is reported or collected and identifying those persons or entities participating in the data contribution program.
H. Any and all documents, notes, manuals, guidelines or procedural manuals showing how any information gathered from HCFA, CHAMPUS, Medicare, Medicaid, and/or any workers compensation carriers was used, either directly or indirectly, in determining the reasonableness of the cost of any health care service provided by Plaintiff.
I. The specific zip codes included in the database used to decide that the health care services provided by Plaintiff would not be paid at the rate billed.
J. The specific CPT codes included in the database used to decide that the health care services provided by Plaintiff would not be paid at the rate billed.
K. The exact identity of each and every health care and/or diagnostic service provider whose charges are used in the database used to decide that the health care services provided by Plaintiff would not be paid at the rate billed.
L. The exact prevailing charge data percentile array used in the database used to decide the health care services provided by Plaintiff would not be paid at the rate billed.
M. The exact data composition of the database used to decide the health care services provided by Plaintiff would not be paid at the rate billed, and whether the following data is included in the database: Medicaid, Medicare, state worker’s compensation rates, state managed under-insured risk pools, CHAMPUS, health maintenance and preferred provider organizations, self-funded employee benefit plans, traditional indemnity insurers and any and all other data utilized.
N. Any and all documentation, correspondence, memorandum, brochures, audio or video tapes, or electronic medium indicating whether or not the relative value scale (“RVS”) is incorporated into the database used to decide that the health care services provided by Plaintiff would not be paid at the rate billed.
O. Any and all documentation, correspondence, memorandum, brochures, audio or video tapes, or electronic medium indicating whether or not the “RBRVS” (Medicare venture) is incorporated into the database used to decide that the health care services provided by Plaintiff would not be paid at the rate billed.
P. Any and all documentation, correspondence, memorandum, brochures, audio or video tapes, or electronic medium indicating whether simple statistical profiling of charges in a geographic area by procedure code is incorporated into the database used to decide that the health care services provided by Plaintiff would not be paid at the rate billed.
Q. The conversion factor employed if an “RVS” methodology is incorporated into the database used to decide that the health care services provided by Plaintiff would not be paid at the rate billed.
R. The maintenance schedule of the database used to decide that the health care services provided by Plaintiff would not be paid at the rate billed, including but not limited to whether or not a “moving window” is employed and how often a new release of the database was produced during the twelve month period prior to the date Plaintiff’s charges were analyzed.
S. The “regional inflation factors”, if any, incorporated into the database used to decide that the health care services provided by Plaintiff would not be paid at the rate billed.
2. On June 13, 2003, Defendant responded to each of the above Requests for Production with the following response:
Objection. This Interrogatory is overly broad and burdensome. Furthermore, this Interrogatory seeks discovery of proprietary materials, confidential research, commercial information and/or trade secrets protected under Rule 1.280, Florida Rules of Civil Procedure.
3. On May 15, 2003, Plaintiff served upon Defendant Plaintiff’s Second Interrogatories, which attached the Explanation of Benefits generated by Defendant as “Exhibit A”, seeking answers to the following interrogatories:
A. With respect to the Explanation of Medical Bill Payment attached as “Exhibit A”, Please describe in detail the exact methodology used to determine that the “amount allowed is based on provider charges within the provider’s geographic region”.
B. With respect to the Explanation of Medical Bill Payment attached as “Exhibit A”, Please specify the exact formula or criteria used to determine the “amount allowed” of $65.00.
C. With respect to the Explanation of Medical Bill Payment attached as “Exhibit A”, if the formula or criteria used to determine the “amount allowed” of $65.00 was determined by software or services provided to Defendant by a third party vendor or other outside source, please give the full name, address, and phone number of that entity and the full name of your primary contact person at that entity.
4. On June 13, 2003, Defendant responded to each of the above Interrogatories with the following response:
Objection. This Interrogatory seeks discovery of proprietary materials, confidential research, commercial information and/or trade secrets protected under Rule 1.280, Florida Rules of Civil Procedure. Without waiving said objection, the following was utilized in determining customary rates for medical services in specific geographic regions:
Mitchell Medical
9889 Willow Creek Road
San Diego, California 92131
5. On May 15, 2003, Plaintiff served upon Defendant Plaintiff’s Second Request for Admissions, which attached the Explanation of Benefits generated by Defendant as “Exhibit A”, seeking responses to the following requests:
A. Determination of the “amount allowed” of $65.00, as stated on the bill review document attached as “Exhibit A”, was based on a specific methodology.
B. Determination of the “amount allowed” of $65.00, as stated on the bill review document attached as “Exhibit A”, was based on a methodology utilizing allegedly “usual and customary” charges.
C. Determination of the “amount allowed” of $65.00, as stated on the bill review document attached as “Exhibit A”, was based on a methodology utilizing allegedly “reasonable and customary” charges.
D. Determination of the “amount allowed” of $65.00, as stated on the bill review document attached as “Exhibit A”, was based on a methodology utilizing allegedly “prevailing rates in the community.”
E. Determination of the “amount allowed” of $65.00, as stated on the bill review document attached as “Exhibit A”, was based on a methodology utilizing allegedly “usual, customary, and reasonable charges in the geographic region in which the services were rendered.”
F. Determination of the “amount allowed” of $65.00, as stated on the bill review document attached as “Exhibit A”, was based on a mathematical formula.
G. Determination of the “amount allowed” of $65.00, as stated on the bill review document attached as “Exhibit A”, was based on non-mathematical criteria.
H. Determination of the “amount allowed” of $65.00, as stated on the bill review document attached as “Exhibit A”, was based on a combination of a mathematical formula and other non-mathematical criteria.
6. On June 13, 2003, Defendant responded to each of the above Requests for Admissions with the following response:
Objection. This Request seeks discovery of proprietary materials, confidential research, commercial information and/or trade secrets protected under Rule 1.280, Florida Rules of Civil Procedure.
It is hereby ORDERED AND ADJUDGED as follows:
1. Defendant’s Objections to Second Request to Produce are OVERRULED;
2. Defendant’s Objections to Second Request for Admissions are OVERRULED;
3. Defendant’s Objections to Second Interrogatories are OVERRULED;
4. Plaintiff’s Amended Motion to Compel Better Responses to Discovery is GRANTED:
a. Within thirty (30) days from the date of this order, Defendant shall fully respond to Plaintiff’s Second Request to Produce, Plaintiff’s Second Request for Admissions, and Plaintiff’s Second Interrogatories.
b. If Defendant fails to completely respond to Plaintiff’s Second Request to Produce, Plaintiff’s Second Request for Admissions, and/or Plaintiff’s Second Interrogatories, as stated above, Defendant will be prohibited from relying on or utilizing the Mitchell Medical Software, the recommendations of Mitchell Medical, and/or Mitchell Medical in any way in the defense of this case. See, Baptiste v. Allstate, 5 Fla. L. Weekly Supp. 407 (Fla. Palm Beach Cty. Ct. 1998)
5. Defendant’s Objection to Taking Deposition Duces Tecum (regarding Noel Gubatan) is OVERRULED.
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