13 Fla. L. Weekly Supp. 480a
Insurance — Personal injury protection — Discovery — Pre-suit discovery — Pursuant to section 627.736(6)(c), insurer is entitled to pre-suit discovery of documents and information regarding medical provider’s bills for treatment, including resumes and licenses of all persons who rendered treatment to claimants, claimants’ files, correspondence with claimants, documentation evidencing amount provider accepted for CPT codes at issue from other insurers, and other information relative to establishing usual and customary charges for those CPT codes
ALLSTATE INSURANCE COMPANY, (In re: Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, Shyrah Tatum), Petitioner/Movant, v. STEVEN D. GELBARD, M.D., P.A., a Florida Corporation, Respondent. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 05-004933 CACE 13. August 15, 2005. Leroy H. Moe, Judge. Counsel: Gregory P. Hengber, Hengber, Goldstein & Ray, P.A., Fort Lauderdale, for Petitioner/Movant. Justin G. Morgan, for Respondent.
ORDER GRANTING PETITIONER’S VERIFIED PETITION/MOTION FOR DISCOVERY PURSUANT TO FLORIDA STATUTE § 627.736(6)(c) AND MOTION FOR GOOD CAUSE
THIS CAUSE having come on to be heard 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, ALLSTATE INSURANCE COMPANY, (hereinafter referred to as “ALLSTATE”), 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. ALLSTATE is a corporation authorized to conduct business in the State of Florida.
3. STEVEN D. GELBARD, M.D., P.A., located at 150 S.W. 12th Avenue, Suite 350, Pompano Beach, Florida 33069, is an alleged health care provider doing business in Broward County, Florida.
4. Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum are the insureds and/or claimants under individual policies of automobile insurance issued by ALLSTATE and subject to the terms, conditions and limitations of the subject policy, governing statutes and case law.
5. Maria Botero, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum were allegedly involved in an automobile accident for which they have claimed personal injury protection benefits.
6. Pursuant to the terms of the subject policy of insurance, Florida Statutes and applicable case law, ALLSTATE is only required to pay for lawfully rendered treatment, supplies and services and reasonable, related and necessary treatment, supplies and services.
7. ALLSTATE made several unsuccessful attempts to obtain further information relative to these bills from STEVEN D. GELBARD, M.D., P.A.
8. STEVEN D. GELBARD, M.D., P.A. refused to voluntarily produce the documents and information requested.
CONCLUSION OF LAW
9. 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.”
10. 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. ALLSTATE Mutual Automobile Insurance Company, 807 So.2d 783 (Fla. 2d DCA 2002) and that ALLSTATE is entitled to all the discovery (all documents and depositions requested) ALLSTATE has requested in their Verified Petition/Motion for Discovery.
11. 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 ALLSTATE 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. ALLSTATE 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:
12. STEVEN D. GELBARD, M.D., P.A. shall provide all documentation and items requested in ALLSTATE’s February 1, 2005 and February 28, 2005 letters; to wit:
1. The curriculum vitae/resume of any and all persons who rendered, performed, administered, provided or otherwise had any involvement in the services provided to Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum. This includes, but is not limited to, doctors, nurses diagnostic testing technicians, physician assistants, medical assistants, physical therapists and any non-licensed individuals who provided any examination, treatment or any services to Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and/or Shyrah Tatum.
2. Copies of any licenses of any and all persons who rendered, performed, administered, provided or otherwise had any involvement in the services provided to Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum. This includes, but is not limited to, doctors, nurses, diagnostic testing technicians, physical assistants, medical assistants, physical therapists and any other individuals who provided any examination, treatment or any services to Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum.
3. The complete file of Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum. (This includes the bills, medical records, all notes/memos/diaries/logs, the prescription for the diagnostic testing, all handwritten notes, all computer generated reports, reports of physical examination, x-rays, x-ray reports, notes on attendance and/or treatment, admission records, initial patient history reports, correspondence, memorandum, telephone memorandum slips, laboratory studies, records of physical therapy, consultation records, hospital records, assignment of benefits, directions to pay, initiations of treatment documents, photographs, sign in sheets, and reports, prescription records tall surveys/questionnaires to the patient, all responses to any and all surveys and questionnaires, any documents not in the file, but stored on any computers or hard-drives, the jackets for those files as well. (This request includes the files, cover-to-cover.)
4. Copies of any Disclosure and Acknowledgement Form executed by Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum.
5. Copies of the patient log maintained for Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum, pursuant to Florida Statute §627.736(5)(e);
6. Copies of any bills, collection letters, correspondence or information sent to Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum or their legal representative by you or your office/clinic regarding any amounts billed, amounts due, amounts written off or otherwise related to any amounts billed by you or your office.
7. Copies of any correspondence, documents, cancelled checks, evidence of payment, evidence to write-off or other information sent by Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum or their legal representatives to you or your office/clinic regarding any amounts billed, amounts due, amounts written off or otherwise related to any amounts billed by you or your office.
8. Any and all information or documentation evidencing what you accepted for CPT codes 9924 and 72141 for calendar years 2003 and 2004, from:
a. Medicare;
b. Medicaid;
c. All workers compensation insurers;
d. All private health care insurers (i.e. Blue Cross, United Healthcare).
e. No Fault/Personal Injury Protection Insurers (i.e. State Farm, Progressive, Hartford, United Automobile Insurance Co.)
*(YOU MAY REMOVE ANY AND ALL INFORMATION WHICH MAY IDENTIFY A PATIENT)
9. Any and all information or documentation evidencing what you billed for CPT code 99244 and 72141 for calendar years 2003 and 2004, from:
a. Medicare;
b. Medicaid;
c. All workers compensation insurers;
d. All private health care insurers (i.e. Blue Cross, United Healthcare).
e. No Fault/Personal Injury Protection Insurers (i.e. State Farm, Progressive, Hartford, United Automobile Insurance Co.)
(YOU MAY REMOVE ANY AND ALL INFORMATION WHICH MAY IDENTIFY A PATIENT)
10. Any documentation you have evidencing:
(A) Any recommendations, suggestions, notes, results, mandates or any other information provided by any consultants, experts, peer reviews, audits/auditors, surveys, similar providers, etc., including any notes memorializing said recommendations, suggestions, results, mandates, etc., relating to the amounts billed by you, in calendar years 2003 and 2004 and relating to the codes used by you in calendar years 2003 and 2004;
(B) Any and all books, treatises, guides, guidelines, periodicals, literature, surveys, memoranda, notes, peer reviews, expert reviews, manuals, schedules, explanation of benefits and information utilized by you to determine the Usual, Customary and/or Reasonable amounts charged for CPT codes 99244 and 72141 for calendar years 2003 and 2004;
(C) Any and all books, treatises, guides, guidelines, periodicals, literature, surveys, memoranda, notes, peer reviews, expert reviews, manuals, schedules, or explanation of benefits indicating what the Usual, Customary, and/or Reasonable amounts are and were, for CPT codes 99244 and 72141, in calendar years 2003 and 2004;
(D) A copy of your fee schedule for each of the specific services allegedly provided to and all other patients, in calendar years 2003 and 2004 and any and all dates your fee schedules were updated, how it was updated and why it was updated;
(E) The names, addresses and credentials of all individuals who participated in setting your fee(s) schedule for CPT codes 99244 and 72141, in calendar years 2003 and 2004;
(F) For any and all surveys relied upon by you in setting your charges for services rendered to Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum in calendar years 2003 and 2004, relating to CPT codes 99244 and 72141.
11. Any and all information and documentation evidencing any and all amounts you have accepted in full and final payment for CPT codes 99244 and 72141 in cases and claims where you have accepted a letter of protection (“L.O.P.”) from the patient or patient’s attorney (Time frame: 2003-2004).
12. Any and all manuals, treatises, books, periodicals, journals, notes or documents relating to how you or your company came with the amounts bills relative to CPT codes 99244 and 72141.
13. Any and all documents verifying or indicating how much money you paid for any equipment, materials, devices, pads or other supplies used in conjunction with any surgeries, examinations, treatments, testing and/or services provided to Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum, (NOTE: If you Lease any of the equipment, materials, devices or other supplies used in conjunction with any examination, treatment, testing and/or services provided to Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum, please provide the terms of said Lease(s), the parties to said Lease and all evidence of compliance with the terms of said Lease(s)).
14. The factual and legal basis for billing CPT codes 99244 and 72141, relative to any examination, treatment, testing, services, products or accommodations provided to Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum.
15. Any and all applications submitted to the Department of Health and Agency for Health Care Administration (relative to registering as a “clinic) in calendar years 2001-2005.
16. Any sales literature, marketing literature, brochures, hard copies of website pages, newsletters, videos, letters, marketing packets, marketing materials and any other sales or marketing literature or videos provided to any and all persons who marketed on behalf of you or your company, in calendar years 2000-2005.
17. Any and all correspondence, documents, letters, invoices, ledgers, etc. evidencing that Maria Botero, Jason Bullard, Oswald French, Erika Garcia, Erica Kuhne, and Shyrah Tatum was requested to pay their 20% balance and/or paid their 20% balance, (otherwise known as the 20% co-pay which is due and owing under No-Fault/PIP policies) which was due and owing under their No-Fault/PIP policy.
18. Any and all books, magazine articles, treatises, peer reviews, studies, texts, articles authored by Dr. Steven Gelbard, in the last five (5) years.
13. 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.
14. With respect to ALLSTATE’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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