13 Fla. L. Weekly Supp. 1222a
Insurance — Personal injury protection — Discovery — Physician who conducted compulsory medical examination relied upon to deny PIP benefits is ordered to comply with subpoena duces tecum to produce copy of report and compensation received in relation to insured’s claim, copies of all medical records review reports prepared during past three years, number of CMEs performed in past three years, cases in which physician has testified at trial or through deposition in past three years and approximation of percentage of income earned performing CMEs — Objection to production of records of compensation received for preparing medical records reviews in past three years is sustained at this time, but insured may revisit request after obtaining discovery ordered if there is additional need for documentation
ROBERT SACHT, Plaintiff(s), vs. SAFECO INSURANCE COMPANY OF ILLINOIS, Defendant(s). County Court, 15th Judicial Circuit, Palm Beach County. Case No. 50 2006 SC 005410 XXXX MB RF. September 12, 2006. James L. Martz, Judge. Counsel: Glenn E. Siegel, Lesser, Lesser, Landy & Smith, LLC, Palm Beach. Jeffrey A. Shaffer, Jeffrey A. Shaffer, P.A., West Palm Beach.
ORDER ON DEFENDANT’S MOTION FOR PROTECTIVE ORDER AS TO THE DEPOSITION OF THE RECORDS’ CUSTODIAN FOR DR. JOSEPH MARFISI
THIS CAUSE came before the Court on August 23, 2006, on Defendant’s Motion for Protective Order as to the Deposition of the Record’s Custodian for Dr. Joseph Marfisi, and the Court having heard argument of counsel and being advised in the premises:
FACTS AND PROCEDURAL HISTORY
1. This lawsuit for personal injury protection benefits involves the Defendant’s denial of payment for medical services incurred by the claimant, Robert Sacht, pursuant to a compulsory medical examination conducted by Joseph Marfisi, D.C.
2. The Records’ Custodian for Joseph Marfisi, D.C. was served with a subpoena for deposition, or to produce the documentation requested in lieu of attending the deposition set for August 10, 2006.
3. The Defendant filed this Motion for Protective Order.
4. The Plaintiff requested the records’ custodian to produce the following:
a. What have you been hired to do and what compensation you will be paid.
b. What percentage of your expert litigation work has been done on behalf of Plaintiffs and Defendants for the past three years.
c. What cases has the doctor testified by deposition or trial for the past three years.
d. What percentage of the doctor’s income has been earned from expert litigation.
e. How many compulsive physical examinations have been performed by your company for the past three years.
f. Identify each case in which you have testified as an expert witness by deposition or at trial in the past three years.
g. Pursuant to Florida case law, including Belvis v. Allstate Insurance Company, 12 Fla. L. Weekly Supp. 398 (18th Judicial Circuit, December 30, 2004); Meloskie v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 363 (1st Judicial Circuit, January 31, 2005), provide copies of all medical records review reports and addendums that you have dictated and/or prepared at the request of any medical records review scheduling company, defense law firms, or insurance companies in the past three years, with the names of patients/insureds redacted to protect patient confidentiality.
h. Pursuant to Florida case law, including Belvis v. Allstate Insurance Company, 12 Fla. L. Weekly Supp. 398 (18th Judicial Circuit, December 30, 2004); Meloskie v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 363 (1st Judicial Circuit, January 31, 2005), produce copies of all records of payments you received for conducting medical records reviews and preparing medical records review reports and addendums at the request of any medical records review scheduling company, defense law firms, or insurance companies in the past three years.
5. The Defendant’s Motion for Protective Order alleges that this is an attempt by the Plaintiff to avoid having to pay Dr. Marfisi’s expert witness fees, that the last two requests set forth above seek information that is protected by HIPAA, are vague and overbroad, and further that Dr. Marfisi estimates that it would take a total of approximately 2700 hours to compile and a total expense of about $60,000.00 to $100,000.00 to comply with the duces tecum requests.
LAW AND ANALYSIS
It is hereby ORDERED and ADJUDGED as follows:
6. With regards to Requests a through g set forth above, (number 1 through 7 in Plaintiff’s duces tecum), Defendant’s Motion for Protective Order is hereby DENIED. In accordance with Florida Statute §627.736(7)(a), Dr. Marfisi is required to “maintain, for at least 3 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.” These requests are in accordance with the guidance provided by Elkins v. Syken, 672 So.2d 517 (Fla. 1996). Dr. Marfisi may provide a copy of his report and compensation received for this claim in compliance with the first request above, which requests him to provide what he has been hired to do and what compensation he will be paid.
7. Defendant’s objection to h above (number 8 in Plaintiff’s duces tecum) is sustained at this time; however, the Plaintiff may revisit this request after obtaining the other documentation Ordered herein and set forth why there is an additional need for this documentation. At this time, and pursuant to Elkins v. Syken, Dr. Marfisi shall provide an approximation of the percentage of income earned performing compulsory medical examinations.
8. Dr. Marfisi shall produce the documents Ordered herein within sixty (60) days from the date of this Order. If the compilation of the documentation is unable to be completed within this time allotted, Dr. Marfisi shall produce all such documentation compiled within sixty (60) days, and set forth specifically what additional documentation remains to be produced and set forth any additional time necessary to fully comply with this Order, which may be addressed by this Court at that time.
9. As per the duces tecum, Dr. Marfisi may also redact the names of the patients/insureds to protect patient confidentiality.
10. The Plaintiff shall pay Dr. Marfisi for reasonable copy charges, but may use its own copy service to reproduce the documents Ordered to be produced herein after being advised of the amount of the copy charges by Dr. Marfisi.
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