12 Fla. L. Weekly Supp. 140a
Insurance — Personal injury protection — Presuit discovery — Where medical provider submitted incomplete, unsigned, unattested, and improperly filled out HCFA 1500 claim form for range of motion and muscle strength testing, insurer has made several attempts to obtain additional information regarding bills, and provider has refused to produce requested documents and information, insurer’s petition for presuit discovery is granted
ESURANCE INSURANCE COMPANY, (In re: James Myers), Petitioner/Movant, vs. COMPUTERIZED MUSCULAR & FITNESS TESTING, INC., Respondent. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 04004169 COCE 04. September 29, 2004. Robert B. Carney, Judge. Counsel: Frank S. Goldstein and Stephen Rosansky, Hengber, Goldstein & Ray, P.A., for Petitioner/Movant. Steve Lander, for Respondent.
AGREED ORDER GRANTING PETITIONERS’ VERIFIED PETITION/MOTION FOR DISCOVERY PURSUANT TO FLORIDA STATUTE §627.736(6)(c) AND MOTION FOR GOOD CAUSE
THIS CAUSE having come before the Court upon the agreement of the parties and the Court being advised that the parties are in agreement to the entry of this order, otherwise fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED that:
1. Petitioner’s, Esurance Insurance Company (hereinafter referred to as “Esurance”) Verified Petition/Motion for Discovery Pursuant to Florida Statute §627.736(6)(c) and Motion for Good Cause are hereby GRANTED.
THIS COURT FURTHER FINDS that:
MATERIAL FACTS
2. Esurance is a corporation authorized to conduct business in the State of Florida.
3. Computerized Muscular & Fitness Testing (hereinafter referred to as “CMFT”), located at 4500 Inverrary Boulevard, Lauderhill, Florida 33319, is an alleged health care provider doing business in Broward County, Florida.
4. James Myers is an insured under a policy of automobile insurance issued by Esurance.
5. On January 5, 2004, James Myers was involved in an automobile accident for which he claimed personal injury protection benefits.
6. Pursuant to the terms of the subject policy of insurance, Florida Statutes and applicable case law, Esurance is only required to pay for lawfully rendered treatment, supplies and services and reasonable, related and medically necessary treatment, supplies and services.
7. Darin Bush, D.O. allegedly ordered a series of Range of Motion and Muscle Strength Testing to be performed upon Mr. Myers, by Computerized and Muscular & Fitness Testing.
8. CMFT submitted a $990.00 bill for services it allegedly provided to James Myers on January 16, 2004.
9. CMFT submitted bills on an incomplete, unsigned/unattested and improperly filled out HCFA/CMS-1500 form.
10. Esurance has made several repeated unsuccessful attempts by telephone and written correspondence, Certified Return Receipt Request, to obtain further information relative to these bills from Computerized Muscular & Fitness Testing.
11. CMFT has refused to voluntarily produce any of the documents and information requested.
CONCLUSION OF LAW
12. Florida Statute §627.736(6)(c) provides, in pertinent part;
“in the event of any dispute regarding an insurer’s right to discovery of facts about an insured person’s earnings or about his history, condition, or treatment, or the date and cost of such treatment, the insurer may petition the Court of competent jurisdiction to enter an order permitting such discovery. The order may be made only on motion for good cause shown and upon notice to all persons having an interest and it shall specify the time, place, manner, conditions and scope of the discovery.”
13. This Court finds that it is bound by the following appellate decisions: Kaminester v. State Farm Mutual Automobile Insurance Company, 775 So.2d 981 (Fla. 4th DCA 2000); State Farm Mutual Automobile Insurance Company v. Dr. Elias Goldstein, et al., 798 So.2d 807 (Fla. 4th DCA 2001) and MRI Services, Inc. v. State Farm Mutual Automobile Insurance Company, 807 So.2d 783 (Fla. 2d DCA 2002) and Esurance is entitled to all the discovery including all documents and depositions it has requested in their Verified Petition/Motion for Discovery and Motion for Good Cause.
14. In Kaminester, the Fourth District Court of Appeals on November 22, 2000, held that Florida Statute §627.736 enables an insurer to obtain presuit discovery. Additionally, the Fourth DCA affirmed the trial court’s order, thereby ordering the provider to comply with the Circuit Court’s Order compelling production of documents and discovery based on Florida Statute §627.736(6) which provides for informal discovery from the provider to the insurer without resort to litigation. Omitting unnecessary words, subsection (b) expressly states that any PIP provider seeking payment from the PIP insurer and provides for informal discovery from the provider to the PIP insurer without resort to litigation. Florida Statute §627.736(6) provides:
“Shall [upon request] by the insurer . . . furnish forthwith a written report of the . . . treatment, dates, and costs of such treatment . . . together with a sworn statement that the treatment or services rendered were reasonable and necessary . . . and permit the inspection and copying of . . . its records regarding such . . . treatment, dates, and costs of treatment.”
The Kaminester Court relied on the definition of discovery in Florida Rules of Civil Procedure 1.280(a), which provides:
“Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission.”
Subsequently, on October 24, 2001, the Fourth District Court of Appeal reaffirmed its decision in Kaminester by rendering an opinion in State Farm v. Goldstein, et al., 798 So.2d 807 (Fla. 4th DCA 2001). In Goldstein, the Court allowed the insurance company to proceed with the requested discovery. On October 24, 2001 pursuant to Florida Statute §627.736(6)(c) the Court ordered the Defendant to provide discovery, inclusive of depositions, interrogatories, and production of documents or other things. Additionally, the Second District agreed with Kaminester in its determination that an insurer is entitled to pre-suit discovery pursuant to Florida Statute §627.736(6)(c). See MRI Services, Inc. v. State Farm Mutual Auto. Ins. Co., 807 So. 2d 783 (Fla. 2d DCA 2002). Furthermore, MRI Services, Inc. relies on Florida Statute § 627.736(6)(c) that provides:
“In an event of a dispute relating to an insurance company’s right to discover information about the insured’s “history, condition, or treatment, or the dates and costs of such treatment,” the insurance company may petition the court to enter an order permitting such discovery.”
Accordingly, it is ORDERED AND ADJUDGED that:
15. Computerized Muscular & Fitness Testing shall provide all documentation and items requested in Esurance’s February 17, 2004 and February 27, 2004 letters, to wit, and shall produce same within 30 days of this Order, via courier service, at the law firm of Hengber, Goldstein & Ray, P.A. located at 100 N.E. 3rd Avenue, Suite 400, Fort Lauderdale, FL 33001. Computerized Muscular and Fitness Testing shall provide the following:
1. The curriculum vitae/resume of any and all persons who administered services to James Myers, which were billed to Esurance;
2. Any and all raw data, tracings, films, photos, waveforms, etc. associated with all services rendered to James Myers
3. Copies of licenses of all persons who participated in the services rendered to James Myers;
4. Prescription and/or referrals for the services rendered to James Myers
5. Any and all documents signed by James Myers;
6. Copies of all county and city occupational licenses in effect in 2003 and 2004;
7. Any and all documentation evidencing the name, credentials and licensure of C.M.F.T.’S medical/clinical director, in 2004;
8. Any and all medical licenses held by C.M.F.T.’s medical or clinical director in 2003 & 2004;
9. Any and all licenses of any persons who interpreted the testing performed on James Myers;
10. The curriculum vitae/resume of any persons who interpreted the testing performed on James Myers;
11. Any and all information or documentation evidencing what C.M.F.T. accepted as payment, from Medicare for CPT code(s) 95851, 95831 and 95832 in calendar years 2003 and 2004;
12. Any and all information or documentation evidencing what C.M.F.T. accepted, as payment, from Medicaid for CPT code(s) 95851, 95831 and 95832 in calendar years 2003 and 2004;
13. Any and all information or documentation evidencing what C.M.F.T. accepted, as payment, from any and all workers compensation insurers, for CPT code(s) 95851, 95831 and 95832 in calendar years 2003 and 2004;
14. Any and all information or documentation evidencing what C.M.F.T. accepted, as payment, from any and all private health care insurers (i.e. Blue Cross/Blue Shield, United Healthcare) for CPT code(s) 95851, 95831 and 95832 in calendar years 2003 and 2004;
15. Any and all information or documentation evidencing what C.M.F.T. billed Medicare for CPT code(s) 95851, 95831 and 95832 in calendar years 2003 and 2004;
16. Any and all information or documentation evidencing what C.M.F.T. billed Medicaid for CPT code(s) 95851, 95831 and 95832 in calendar years 2003 and 2004;
17. Any and all information or documentation evidencing what you billed workers compensation insurers/carriers, for CPT code(s) 95851, 95831 and 95832 in calendar years 2003 and 2004;
18. Any and all information or documentation evidencing what C.M.F.T. billed private health insurers (i.e. Blue Cross/Blue Shield, United Healthcare), for CPT code(s) 95851, 95831 and 95832 in calendar years 2003 and 2004;
19. Any documentation C.M.F.T. have evidencing:
(A) Any recommendations by peer reviews, consultants, similar providers or other such personnel, including any hand written notes memorializing said recommendations;
(B) All information utilized by C.M.F.T. to determine the Usual, Customary and/or Reasonable amounts charged by you for services rendered to James Myers
(C) Any and all schedules indicating what fee(s) you consider to be within the “Usual and Customary” range and/or guidelines;
(D) A copy of the medical provider(s) fee schedule for each of the specific services that provider provides and/or which were provided to this patient, and the date your fee schedule was last updated and how it was updated;
(E) The names, addresses and credentials of all individuals who participated in setting your fee(s) schedule;
(F) Please provide evidence of the methods of determining the fee(s) and assurance(s) used and that they are in harmony with all state insurance equity laws, UCR guidelines and/or Relative Value Scales;
(G) Any and all surveys relied upon by C.M.F.T. in setting the charges for services rendered to James Myers
20. C.M.F.T.’S office manual on billing procedures;
21. All memos, guidelines and/or instructions to C.M.F.T.’s billing clerk regarding the procedures the clerk must follow when billing; the codes the clerk is to use; and the fees the clerk is to charge;
22. Any and all documents verifying or indicating how much money C.M.F.T. paid for the equipment materials, devices and pads, etc., used to perform testing on James Myers;
23. Any and all documents verifying or indicating the lease terms of the equipment, material, devices and pads, etc., used to perform testing on James Myers;
24. C.M.F.T. fee schedule(s) in effect in 2003 and 2004;
25. Any and all applications submitted by C.M.F.T. to the Department of Health (relative to registering as a “clinic”) within the last year. (this includes ALL applications submitted to the Department of Health by C.M.F.T., whether accepted or rejected) [pursuant to F.S. 456.0375];
26. Any and all correspondence, letters, memoranda, memos, notes and/or other documentation received from the Department of Health, within the last year [pursuant to F.S. 456.0375].
27. Please set forth C.M.F.T.’s factual and legal basis for billing CPT codes 95851, 95831 and 95832, relative to services rendered to James Myers.
16. Additionally, Computerized Muscular & Fitness Testing shall produce David W. Baruch, owner/officer, Patricia (Nalvanko) Baruch, owner/officer, Alex Kroytor, owner/officer, Lloyd Morris, D.C., clinical director and Dr. Darin Bush, referring physician, for depositions, respectively, within sixty (60) days from the date of this Order.
17. Esurance shall be entitled to attorney fees and costs pursuant to Florida Statute §627.736(6). The Court reserves jurisdiction to determine the amount of attorney fees and costs.
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