12 Fla. L. Weekly Supp. 1020a
Insurance — Personal injury protection — Discovery — Requests that insurer provide independent medical examination reports prepared by insurer’s expert and copies of payment invoices were overly broad — Content of IME report is protected healthcare information, and seeking even redacted versions of IMEs impermissibly infringes on patient privacy, without a corresponding justification — Impeachment of expert is collateral purpose which is more easily obtained through cross-examination of expert — Discovery that is permitted is how often expert testified on insurer’s behalf and how much money expert made from its relationship with insurer — Limiting discovery to one-year period was appropriate — Remand with instructions to enter order directing insurer to provide information on how often expert was hired by insurer for expert witness services, names of cases expert was hired to render opinions in, and how much money expert was paid for his services, including hourly rates, during one-year period
PROGRESSIVE EXPRESS INSURANCE COMPANY, Petitioner, v. QUALITY MEDICAL GROUP, INC., a/a/o ZEIDA CALDERON, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-091 AP. L.C. Case No. 03-7533 SP 25. August 2, 2005. On Writ of Certiorari Appeal from an order requiring production of certain documents of the County Court in and for Miami-Dade County, Mercedes A. Bach, Judge. Counsel: V. Julia Luyster, Bernstein, Chackman & Liss, for Petitioner. Mari Sampedro-Iglesia, Jose R. Iglesia, P.A., for Respondent.
(Before FRIEDMAN, HUBBART, and BROWN, JJ.)
We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(2) (2004).
Plaintiff/Respondent, Quality Medical Group, Inc. (Quality), sought the following production from Defendant/Petitioner, Progressive Express Ins. Co. (Progressive) through a request for production: (1) “Copies of any and all Peer Reviews and IMEs performed by Richard Glatzer, M.D., from October 1, 2003, through the present pursuant to section 627.736(7) of Florida Statutes, effective October 1, 2003” and (2) “Copies of any and all payments received by Richard Glatzer, M.D., or his practice for Peer Reviews and IMEs performed from October 1, 2003, to the present pursuant to section 627.736(7) of Florida Statutes effective October 1, 2003.”
The lower court permitted this discovery, but limited the time period to January 25, 2004 through January 25, 2005, required redaction of “personal information” including the name, D.O.B., and social security number of the patient, and that an in-camera inspection take place to “insure patient confidentiality.” Progressive appeals the merits of this decision.
Following the reasoning of Allstate Insurance Co. v. Boecher, 733 So. 2d 993, 999 (Fla. 1999) and Elkins v. Syken, 672 So. 2d 517, 521-22 (Fla. 1996), this court agrees with the Petitioner that the discovery order is overbroad. Providing access to actual IME reports and billing statements or invoices delves too deeply into collateral matters and “serves only to emphasize in unnecessary detail that which would be apparent to the jury on the simplest cross-examination: that certain doctors are consistently chosen by a particular side in personal injury cases to testify on its respective behalf.” LeJeune v. Aikin, 624 So. 2d 788, 790 (Fla. 3d DCA 1993) (Schwartz, C.J., specially concurring) quoted in Syken v. Elkins, 644 So. 2d 539, 545 (Fla. 3d DCA 1994) quoted in Elkins, 672 So. 2d at 521.
In Boecher, the Florida Supreme Court was confronted with a situation similar to the one here: discovery requests addressed to a party about its dealings with an expert. 733 So. 2d at 994. Specifically, the information requested was for “the identity of cases in which [the expert] had performed analyses and rendered opinions for [the party] nationally and in the preceding three years. The questions also sought to learn the amount of fees . . . paid . . . during the preceding three years.” Id. The court’s review was limited to “whether a party is prohibited from obtaining discovery from the opposing party regarding the extent of that party’s relationship with an expert.” Id. The court found that the purpose of this discovery was “directly relevant to a party’s efforts to demonstrate to the jury the witness’s bias [towards that party].” See id. Preventing such discovery “would potentially leave the jury with a false impression concerning the extent of the relationship between the witness and the party by allowing a party to present a witness as an independent witness when, in fact, there has been an extensive financial relationship between the party and the expert.” Id. at 998. The limited requests prevented this effect. See id.
In Elkins, the Florida Supreme Court addressed the purpose behind discovery requests directed toward impeachment of expert testimony. See 672 So. 2d at 521-22. The discovery request, as permitted by the trial court, required the expert to compile data from numerous files, and to change the method through which he maintained his data. Id. at 521. On initial appeal, the circuit court reversed the broad request and limited inquiry for purposes of impeachment to eight (8) criteria utilized during deposition. Id. at 521. In examining the merits of the circuit’s decision, the Florida Supreme Court analyzed the burdens suffered by physicians in complying with discovery requests, concluding that many experts would choose not to participate due to “the perception that the process could invade their personal privacy.” Id. at 522. The court declined to adopt the argument that discovery is necessary because “without additional discovery, no way exists to disprove the accuracy of the expert’s statements” Id. at 521. Instead, the court concluded that adopting these arguments “could have a chilling effect on the ability to obtain doctors willing to testify and could cause future trials to consist of many days of questioning on the collateral issue of expert bias rather than on the true issues of liability and damages.” Id. at 522. The court ruled that the eight criteria served the purpose of discovery without over-burdening the physician expert.
Notably, however, Boecher did not specifically define the limits of acceptable discovery. The reasoning in Elkins indicates that discovery regarding an expert’s past opinions and payment history is best obtained by deposition from that expert. However, where the request is addressed to the party, the court in Boecher did not provide similar limitations on the extent of permissible discovery. The only discovery that is certainly permissible is the limited amount addressed in Boecher: “how often the expert testified on [the party’s] behalf and how much money the expert made from its relationship with [the party].” Id. at 997.
There is no question that the contents of an IME report is protected healthcare information, as contemplated by patient confidentiality laws. Seeking even redacted versions of the IMEs impermissibly infringes on patient privacy at the basic level, without a corresponding justification. See generally Amente v. Newman, 653 So. 2d 1030 (Fla. 1995); State Farm Mutual Auto. Ins. Co. v. Sharp, 647 So. 2d 981 (Fla. 2d DCA 1994); Cedars Healthcare Group, LTD v. Freeman, 829 So. 2d 390 (Fla. Cir. Ct. 2002). Here, the only justification is for the collateral purpose of impeachment. As shown in Elkins, this purpose is more easily obtained through “the simplest cross examination” and, as shown in Boecher, through interrogatories. IME reports themselves appear to be beyond the outer limits of obtainable discovery under Boecher. They are protected information, and given the limited probable value they may (or may not) have, should not be subject to discovery. Quality’s reliance on the plain language of Florida Statute section 627.736(7)(a) (2003) is misplaced, especially since the statute itself characterizes the reports as “medical records” and further indicates that the physician, not entities such as Progressive, maintain the reports.
It is the conclusion of this court that Boecher limits the discovery obtainable from Progressive. Dr. Glatzer is in the best position to provide Quality with the impeachment evidence it seeks. As explained above, the Elkins and Boecher decisions limit discovery to summary form of the information sought. The documents Quality seeks will provide more information than is permitted.
A similar situation was confronted in Allstate Ins. Co. v. Pinder, 746 So. 2d 1255, 1255 (Fla. 5th DCA 1999). There, the discovery sought was “lists” of information evidencing the identity of cases in which the expert was involved, the number of times the expert was retained, and the money paid to the expert for his services. Id. In concluding that the requested discovery was over-broad, the court explained, “[a] party may be entitled to know the extent of the financial connection between the opposing party and a witness but Boecher does not hold that a party is entitled to the amount of detail requested here[.]” Id. at 1256-57. The court noted:
If served with properly drafted interrogatories, petitioner would have to provide at least part of the requested information . . . More responsible lawyering on both sides should have obviated the need for this appellate proceeding entirely.
Id. at 1257 (emphasis in original). The same conclusion is reached by this court.
Requests for IME reports themselves and payment invoices, as Quality seeks, are over-broad. Like the party in Pinder, Quality seeks concrete evidence of a fact that can be proven through the documents requested, but is generally proven through other discovery means. The risk of thwarting the privacy protections afforded to the patients and to physicians as explained in Elkins, and the limitation on discovery expressed in Boecher, all lead to the conclusion that the discovery order of the county court should be reversed.
The discovery that is permitted is that addressed in Boecher: “how often the expert testified on [the party’s] behalf and how much money the expert made from its relationship with [the party].” 733 So. 2d at 997. Limiting the period from January 25, 2004 to January 25, 2005 is appropriate, and that much of the order is not reversed.
This matter is reversed and remanded to the trial court with instructions to enter an order in accordance with this opinion, directing Progressive to provide information on how often Dr. Glatzer was hired by Progressive for expert witness services, the names of cases Dr. Glatzer was hired to render opinions in, and how much money was paid to Dr. Glatzer for his services, including hourly rates, during the period of January 25, 2004 to January 25, 2005. Any further discovery should be requested by Quality through other discovery methods. This opinion is without prejudice.
Quality’s request for attorney’s fees is denied. Since Quality is not the prevailing party, attorney’s fees are not appropriate. § 627.428, Fla. Stat. (2004).
REVERSED and REMANDED with instructions.
* * *
