12 Fla. L. Weekly Supp. 767a
Insurance — Personal injury protection — Discovery — Independent medical examination reports and payment records — Failure to comply — Sanctions — Contempt — IME physician is found in contempt and stricken from insurer’s witness list where insured’s preparation for trial set to occur within three weeks has been substantially prejudiced by physician’s failure to comply with subpoena for IME records on grounds that because regular patient files and IME referral files are intermingled in physician’s filing system it would be unduly burdensome to pull all files to identify IME referrals and then copy and redact applicable records — By failing to comply with court order requiring physician to comply with subpoena, physician has shown absolute contempt for statutory obligations — Physician has proven that he has no respect for those obligations by admission that he has not changed filing system, and physician has exhibited no concern or remorse for his inaction
GINA MELOSKIE, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Escambia County. Case No. 2003 SC 004370, Division 5. April 28, 2005. Patricia A. Kinsey, Judge. Counsel: Robert N. Heath, Jr., McDonald, Fleming et al., Pensacola, for Plaintiff. Craig B. Morris, Daniell, Upton, Perry & Morris, P.C., Daphne, AL, and William D. Anderson, for Defendant.
ORDER FINDING DR. D.J. JESERSKI, D.C.IN CONTEMPT OF COURT
At a hearing on April 14, 2005, the plaintiff moved to exclude the testimony of Dr. D.J. Jeserski, the chiropractic physician who performed the plaintiff’s insurance medical examination (IME) on behalf of defendant. Defendant relied on this IME in terminating plaintiff’s chiropractic PIP benefits.
A brief history of the plaintiff’s interactions with Dr. Jeserski reveals a pattern of Dr. Jeserski’s conduct which obstructed the legal process in this PIP case. Beginning back in August, 2004, plaintiff served Dr. Jeserski with a subpoena requesting copies of IME reports and financial records pursuant to §627.736(7). This statute requires all physicians who perform insurance medical examinations (IME’s) to keep all IME reports and financial records reflecting any compensation paid for doing IME’s for a period of three years. Progressive was served notice of this subpoena and did not object.
Three months later, Dr. Jeserski sent a minimal response to plaintiff, but did not include the financial records documenting his IME compensation, nor did he produce copies of the IME reports subpoenaed. Plaintiff wrote and asked Dr. Jeserski to complete production of the required documents. Dr. Jeserski responded in writing that this request was too burdensome and he could not comply. However, if plaintiff wished to send a $5,000.00 deposit against the time and expense of pulling records and making copies, he would get started.
Plaintiff filed a motion to compel and on January 28, 2005, the court conducted a hearing at which Dr. Jeserski appeared telephonically, and the parties appeared through counsel in the courtroom. On the record, plaintiff’s counsel patiently reviewed the history of the problem. Having been informed of the history, the court asked Dr. Jeserski why he ignored the subpoena for his records. Dr. Jeserski explained that although he regularly performs IME’s and is therefore well aware that as a result, he would be periodically requested to produce records, he made the decision to keep his patient records alphabetically in storage boxes in a storage room. He does not store his actual patient records separately from his IME records. His records are not separated and stored by year. They are simply co-mingled and arranged alphabetically regardless of how old the record or the type of record created.
Now, despite this business/professional record-keeping decision, Dr. Jeserski seeks to avoid his statutory duty to provide records. He says it would be cost prohibitive, and too burdensome to find his IME reports and make copies. His resistance to complying with the subpoena was strong and clearly evident. He strongly objected to any forced compliance the subpoena and asked the court to get the medical service provider who maintains this stable of doctors who perform IME’s to provide the information. When that failed, he wanted to be paid for his time in pulling each file out of each box and reviewing each file to see if the information in the file pertained to an actual patient of his, or an IME referral. He then said he would have to further review each record to redact certain information based on HIPAA regulations. Finally he argued that because he worked six days a week and therefore could only go to this “dark” storage area on Sundays to review his files, sort out the IME cases, and make copies it was an unreasonable request which would be virtually impossible to do in a timely manner. He quite simply, by intonation of his voice, obvious exasperation and loud sighs and choice of words, made it all too clear that he had no intention of complying with the subpoena in a timely manner, if at all.
After this January 28, 2005 hearing, and based primarily on the relevance of the requested information and the provisions of §627.736(7), Florida Statutes, the court issued an Order to Compel which was provided directly to Dr. Jeserski. [12 Fla. L. Weekly Supp. 363a.] The Order required Dr. Jeserski to provide plaintiff with the pertinent documents within thirty days. The Order further required the plaintiff to reimburse for any statutory costs incurred producing the records. Neither party heard from Dr. Jeserski again until the plaintiff filed a motion to exclude him as a witness based on his failure to comply with the court’s order nearly three months later.
The doctor was served a Show Cause Order and a hearing set for April 28, 2005. Dr. Jeserski again appeared telephonically while the parties were represented through counsel in the courtroom. Dr. Jeserski was given an opportunity to explain to the court why he did not comply with the court Order. He complained that a copy of the HIPAA regulations was not attached to his copy of the court Order and this delayed him three weeks of the four weeks he was given to comply. This explanation is without merit for the only reason the doctor wished to review the HIPAA regulations was to verify what, if anything, he needed to redact prior to releasing the documents to plaintiff. There was no reason not to begin pulling the various records to prepare them for reproduction. Furthermore, the court finds it incredulous that a practicing physician does not have in his possession his own personal copy of the HIPAA regulations, highlighted and reviewed on a regular basis. The HIPAA regulations are simply too important to be treated otherwise. However, even assuming that Dr. Jeserski’s copy of the court’s Order did not have the HIPAA regulations attached, Dr. Jeserski did not ask for an extension or have any contact with the court other than asking for the copy of the HIPAA regulations he said were not included in his original package. He acknowledges he received a copy of the HIPAA regulations within the first three weeks after the Order was issued and yet here we are three months later and he has still not complied nor even spoken with anyone.
Dr. Jeserski also complains he did not receive a check from the plaintiff to cover his expenses. Yet he did not call and ask plaintiff’s counsel for a check. Nor did he ask for an extension based on his perceived failure of plaintiff’s counsel to send him any money. But more importantly, the court order required plaintiff to reimburse the statutory costs permitted for the required documents. The court order did not require plaintiff to deposit any money prior to the doctor complying with his statutory obligations. The Order merely assured the doctor that this statutory expenses would be reimbursed.
Dr. Jeserski said he did not trust plaintiff’s counsel to pay him for his copies, yet he did not raise this concern with the court after receiving his copy of the Order — he simply ignored the court order and his statutory obligations. In fact, he knew how to contact the court since he, by his own testimony, stated he called twice to get a copy of the HIPAA regulations, but made no mention of failure to receive any money, or see a requirement for advance money in the Order.
Counsel must be ready for trial in three weeks. Plaintiff has been waiting six months for Dr. Jeserski’s records. After explaining to the court back in January the enormity of the task, Dr. Jeserski admitted yesterday that he had just released a member of his office staff to start reviewing the records that very morning — the day of the actual contempt hearing. His failure to comply with the subpoena issued last November and properly served on him, when combined with his failure to comply with the court Order issued in January of this year, has substantially prejudiced the plaintiff’s preparation for trial. Dr. Jeserski has shown absolute contempt for his statutory obligations and based on his own admissions that he has not changed his “filing” system, proves he has no respect for his obligations under the law. He exhibited no concern or remorse for his inaction. He exhibited no intent to change his indifference for his legal obligations related to his IME practice, and therefore the court finds there is no other means to reach Dr. Jeserski other than to exclude him as a witness in this case with the hope that this extreme sanction might possibly change his attitude toward the law in the future for the many cases he will no doubt be involved in due to his extensive IME practice. The court does not take this action lightly. The court recognizes the impact this decision has on the defendant’s case. However, it has become crystal clear to the court that no other remedy will insure this active participant in the judicial process will adhere to the law and show respect for the power of the properly served subpoena or court Order other than this exclusion of his testimony.
ORDERED AND ADJUDGED that Dr. D.J. Jeserski is in contempt of court for his failure to comply with the Order to Compel issued January 31, 2005, and attached hereto for the record.
FURTHER ORDERED that the sanction for this contempt shall be removal of Dr. Jeserski’s name from the defendant’s witness list and his testimony shall be excluded from the trial in this case.
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