12 Fla. L. Weekly Supp. 354a
Insurance — Personal injury protection — Coverage — Medical expenses — Discovery — In event of dispute relating to insurer’s right to discover information about insured’s history, condition or treatment or dates and costs of such treatment, insurer may petition court to enter order permitting such discovery — Medical provider ordered to provide documentation and items requested by insurer
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, (In re: Venus Baratta), Petitioner/Movant, vs. COMPUTERIZED MUSCULAR & FITNESS TESTING, INC., Respondent. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 0415278CACE 11. January 3, 2005. Dorian Damoorgian, Judge. Counsel: Frank S. Goldstein, Hengber, Goldstein & Ray, P.A., Fort Lauderdale, for Petitioner. Brian Korte, Kane & Kane, P.A., for Respondent.
ORDER GRANTING PETITIONER’S VERIFIED PETITION/MOTIONFOR DISCOVERY PURSUANT TO FLORIDA STATUTE§ 627.736(6)(C) AND MOTION FOR GOOD CAUSE
THIS CAUSE having come on to be heard on November 29, 2004 on Petitioner’s Verified Petition/Motion for Discovery Pursuant to Florida Statute §627.736(6)(c) and Motion for Good Cause and the Court having considered the record, having heard the argument of counsel and the Court being otherwise fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED that:
1. Petitioner’s, State Farm Mutual Automobile Insurance Company (hereinafter referred to as “STATE FARM”), 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. STATE FARM 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. Venus Baratta is an insured under a policy of automobile insurance issued by STATE FARM and subject to the terms, conditions and limitations of the subject policy, governing statutes and case law.
5. Venus Baratta was allegedly involved in an automobile accident for which she has claimed personal injury protection benefits.
6. Pursuant to the terms of the subject policy of insurance, Florida Statutes and applicable case law, STATE FARM is only required to pay for lawfully rendered treatment, supplies and services and reasonable, related and necessary treatment, supplies and services.
7. Dr. Joel Stein allegedly ordered a series of Range of Motion and Muscle Strength Testing to be performed upon Venus Baratta by C.M.F.T.
8. CMFT submitted a $1080.00 bill for services it allegedly provided to Venus Baratta on April 6, 2004.
9. CMFT submitted bills on an incomplete, unsigned/unattested and improperly filled out HCFA/CMS-1500 form.
10. STATE FARM made several unsuccessful attempts to obtain further information relative to these bills from C.M.F.T.
11. CMFT refused to voluntarily produce any of the documents and information requested and the owners, David Baruch and Patricia Nalvanko, officer, Alex Kroytor and “medical” director, Dr. Lloyd Morris, D.C. would not appear for statements and/or examinations under oath.
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 that STATE FARM is entitled to all discovery (all documents and depositions requested) STATE FARM has requested in their Verified Petition/Motion for Discovery.
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 PIP 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. The court held that the discovery contemplated by section 627.736(6)(c) authorizes discovery which includes depositions, interrogatories, and production of documents or other things. Even more recently, 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. C.M.F.T. shall provide all documentation and items requested in STATE FARM’s April 20, 2004 letter; to wit:
1. The entire medical file, including but not limited to any and all handwritten notes (to include raw test data), billing records, statements, super bills, records, reports, correspondence, charts, test findings, evaluation reports, prescriptions, referral forms, laboratory and radiology reports, patient questionnaires, assignments of benefits, releases, proof of prior mailings, authorizations and all other medical records and documents concerning this patient.
2. Any and all forms completed and/or signed by or on behalf of the patient.
3. The names and copies of licenses (medical and occupational) of all the individuals who participated in the care of this patient.
4. The name and license number of your Medical Director as required by Florida statute.
5. Copies of contracts/leases/agreements written or verbal with any diagnostic/medical provider used in this patient’s care.
6. A copy of your mobile locations for the 1st quarter of 2004 as required by Florida statute.
7. Any and all information or documentation evidencing the billing from and payment to your facility from any and all private, individual or health care insurers for CPT codes 95831, 95851 and 95832. [time frame ş April 2003-April 2004] [all information which may reveal the identity of the patient may be redacted to protect patient confidentiality]*
*With respect to number 7 above, assuming that C.M.F.T. cannot produce this information via its computer, and needs to be done manually, C.M.F.T shall provide STATE FARM’s counsel, Frank S. Goldstein, Esq. with an affidavit providing a good faith estimate of the reasonable costs necessary to produce documents responsive to number 7. Said affidavit shall be provided to Frank S. Goldstein, Esq. within fifteen (15) days from the date of this Order.
16. All of the above documents shall be produced, within thirty (30) days of this executed 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.
17. Additionally, C.M.F.T. shall produce David W. Baruch, owner/officer, Patricia (Nalvanko) Baruch, owner/officer, Dr. Lloyd Morris, D.C., clinical director and Dr. Joel Stein, the referring physician for deposition, respectively, within sixty (60) days from the date of this Order.
18. With respect to STATE FARM’s entitlement to attorney fees and costs pursuant to Florida Statute §627.736(6), the Court reserves jurisdiction to determine entitlement to attorney fees and costs, following the completion of the discovery ordered in this matter.
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