13 Fla. L. Weekly Supp. 512a
Insurance — Personal injury protection — Discovery — Expert witness — Physician who performed independent medical examination of insured is ordered to comply with subpoena duces tecum to produce to medical provider documents and information regarding other IMEs and peer reviews rendered in past three years and compensation for IMEs and reports
GARY H. WEISS, D.C., DABFE, As assignee of NANCY CASTILLO, Plaintiff, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-4293. March 2, 2006. John R. Sloop, Judge. Counsel: Roy J. Smith, IV, Weiss Legal Group, P.A., Maitland, for Plaintiff. R. Scott Simmons, Law Offices of Capito and Polk, Lake Mary, for Defendant. Beth A. Moriarty, Maitland, for Plaintiff.
ORDER REGARDING PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH SUBPOENA DUCES TECUM OR IN THE ALTERNATIVE MOTION TO STRIKE EXPERT
This cause came before the Court on the Plaintiff’s Motion to Compel Compliance With Subpoena Duces Tecum or in the Alternative Motion to Strike Expert. The Court has considered the motion, being fully advised in its premises, and after hearing oral argument of the parties, the Court finds as follows:
1. This is a claim by the Plaintiff, a chiropractor, against the Defendant insurance company for PIP benefits.
2. Defendant has raised the affirmative defense that the service provided by Plaintiff was unreasonable, unrelated and unnecessary in relation to the automobile accident based on an opinion by Defendant’s expert who performed a compulsory medical examination.
3. Through discovery, it was been learned that Defendant’s compulsory medical examiner/expert is Mimi Helene Suhar, D.C. who examined Ms. Castillo on August 31, 2004.
4. On January 17, 2005, Plaintiff sent a Notice of Production from Non-Party to Defendant indicating that Plaintiff would be subpoenaing the records and other documents from Mimi Helene Suhar, D.C.
5. The proposed subpoena sought the following information and documentation from Dr. Suhar:
1. All documents, writings, or electronic media and the like of whatsoever nature pertaining to the following:
a. The scope of your employment in this case and the compensation for such service.
b. Your general litigation experience, including the percentage of work performed for plaintiffs and defendants.
c. The identity of other legal actions, including the style of the case, the case number and the court in which the action was pending, in which you have provided sworn testimony the last three years, or alternatively, if you do not have a listing of such cases then produce the documents from which such a list could be complied, including producing billing records, 1099 forms or other documents within your control or the control of the defendant, or its agents including the attorney or insurance company for defendant, from which the identity of the cases in which you have testified during the past three years may be determined.
d. An approximation or percentage of your income derived from serving as an expert witness which may be based on the number or percentage of hours, specifying the percentage of work performed for plaintiffs and defendants.
2. If you are a medical expert, in addition to the items described in 1) above, provide All documents, writings, or electronic media and the like of whatsoever nature pertaining to the following:
a. The identity of other opinions or evaluations (by examinee name, date, and claim number) you have rendered, both in Florida and nationally, in the preceding three years. This includes copies of all reports generated for all peer review and independent medical examinations you have conducted in the last three years.
3. Your most current curriculum vitae or resume.
4. All writings setting forth your opinions or observations concerning Plaintiff’s claimed injuries.
5. Copies of all communication you have received from Defendant or Defendant’s agents regarding, in any way, the Defendant’s insured, Nancy Castillo.
6. No objection was made by Defendant to this notice of subpoena. Therefore, it was sent to Dr. Suhar on February 3, 2005 and served upon Dr. Suhar on February 4, 2005.
7. On March 9, 2005, Dr. Suhar sent to Plaintiff a copy of the correspondence between her office and the third party vendor for the performance of Ms. Castillo’s compulsory medical examination. In addition, Dr. Suhar provided a copy of her report and the medical records of Ms. Castillo she had in her possession.
8. Dr. Suhar did not provide any other documents or any other responses to Plaintiff’s subpoena.
9. In fact, on March 1, 2005, counsel for Dr. Suhar, J. Tracy Wilkenson, filed a motion for protective order regarding Plaintiff’s subpoena attempting to secure a ruling that the remainder of the requests in the subpoena did not need to be complied with.
10. To date, Dr. Suhar, Defendant’s expert witness, has failed to fully respond to the subpoena issued to her. Further, the information requested was not objected to by Defendant.
11. On July 8, 2005, Plaintiff filed its Motion to Compel Compliance with Subpoena Duces Tecum or in the Alternative Motion to Strike Expert.
IT IS HEREBY ORDERED AND ADJUDGED:
Plaintiff’s Motion is hereby GRANTED as follows:
a. The requested information and documents are relevant in this matter.
b. Much of the documentation and information sight by Plaintiff is documentation that Dr. Suhar, in order to provide an opinion as an independent medical examiner, must maintain. More specifically, Florida Statutes Section 627.736(7)(a) requires in part that:
The physician preparing a report at the request of an insurer and physicians rendering expert opinions on behalf of persons claiming medical benefits for personal injury protection, or on behalf of an insured through an attorney or another entity, shall maintain, for at least three years, copies of all examination reports as medical records and shall maintain, for at least 3 years, records of all payments for the examinations and reports.
c. The information sought by Plaintiff in the subpoena must be maintained by Dr. Suhar in order to provide the opinion upon which Defendant relies for its decision not to pay for the services provided by Dr. Weiss.
d. Dr. Suhar and/or Defendant shall produce the documents sought in the Subpoena Duces Tecum to Dr. Suhar within 30 (thirty) days of the date of this order.
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