14 Fla. L. Weekly Supp. 78b
Insurance — Personal injury protection — Discovery — Expert witnesses — Treating physician — Medical provider’s motion for protective order against insurer’s request for expert discovery information regarding treating physician’s experience as expert witness is granted where physician will testify regarding medical necessity of treatment as treating physician, not as retained expert, and physician’s involvement with any prior independent medical examinations or peer reviews is immaterial to medical necessity issue
NEUROLOGY ASSOCIATES OF NORTH FLORIDA, INC., (as assignee of Jindra Marion), Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2006-SC-4381, Division E. October 30, 2006. John A. Moran, Judge. Counsel: Vincent P. Gallagher, Gallagher Law Firm, Jacksonville, for Plaintiff. Glenn Banner, for Defendant.
ORDER OF PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
This matter came before the court on Plaintiff’s Motion for a Protective Order. Progressive seeks expert discovery information from Dr. Richard Boehme regarding Dr. Boehme’s experience as an expert witness. Dr. Boehme is the treating physician and a non-party to the instant case. The underlying facts are not in dispute.
Plaintiff, Neurology Associates of North Florida, Inc. (NANF) is a Florida corporation providing medical services to Duval County residents. Dr. Richard Boehme, a neurologist, has ownership interest in NANF but is not a named party to this action. The Plaintiff is Neurology Associates of North Florida, Inc. Jindra Marion (Marion) is a Progressive insured who allegedly suffered personal injuries related to a motor vehicle accident on September 10, 2004. Dr. Boehme first examined Marion on September 30, 2004, for medical treatment related to the motor vehicle accident. Marion assigned rights to the applicable Progressive medical benefits to NANF.
Pursuant to the Progressive insurance contract and F.S. § 627.736, Progressive required Marion to submit to a compulsory medical examination (CME) on December 27, 2004 with Dr. Bruce Hartwig. After the CME, Dr. Hartwig opined that future medical treatment (MD) would not be reasonable, related or medically necessary. Progressive notified Marion that PIP benefits for future medical treatment (MD) would be suspended January 7, 2005.
On February 27, 2006, the assignee, Jindra Marion, presented at NANF for medical treatment purportedly related to the September 10, 2004 motor vehicle accident. Plaintiff timely billed Progressive for this date of service. Progressive denied payment stating that “No-Fault benefits for Neurologic treatment under this policy have been suspended based on the Independent Medical Examination” (CME).
Plaintiff sent Defendant a statutory “demand letter” and Defendant once again indicated that the February 27, 2006 treatment would not be paid due to . . .“No-Fault benefits for Neurologic treatment under this policy have been suspended based on the Independent Medical Examination” (CME).
Neurology Associates of North Florida filed a breach of contract action naming Progressive American Insurance Company as Defendant. The only treatment date at issue is February 27, 2006, in the amount of $150.00 payable at 80%, or $120.00. Dr. Richard Boehme is not a party to this lawsuit.
Florida Statutes §627.736(1) requires PIP insurers to pay 80% of all medically necessary medical services. The statute states:
Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.
“Medically Necessary” is defined as:
“medically necessary” is now defined as a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is: (a) in accordance with generally accepted standards of medical practice, (b) clinically appropriate in terms of type, frequency, extent, site, and duration, and (c) not primarily for the convenience of the patient, physician, or other health care provider. Fla. Stat. ch. 627.732(2) (2001),
Plaintiff’s burden at trial will be to prove by a preponderance of evidence, that the February 27, 2005 date of treatment was medically necessary. Under Florida Statutes §627.736(1) , both reasonableness and medical necessity are essential elements of the plaintiff’s case, and it is not the Defendant’s burden to prove that a charge was unreasonable or a service medically unnecessary. The only issue at trial will be whether the disputed date of service was medically necessary. The Florida Legislature has defined “medically necessary.” Therefore, information that is reasonably calculated to lead to the discovery of admissible evidence is subject to discovery by the parties. (see Florida Rules of Civil Procedure 1.280(b)(1)).
Defendant’s interrogatory number three (3) requests: “Has Richard Boehme, M.D. performed any medical examinations and/or review of medical records/peer reviews at the request of insurance companies or Plaintiff’s attorney in the past three years.”
Defendant’s interrogatory number five (5) requests: “Has Richard Boehme, M.D. testified as an expert by way of deposition and/or trial during the preceding three years? If so, provide the dates, case name and style and lawyers involved in the subject matter.”
Defendant’s interrogatory number six (6) request: “Give an approximation of the portion of Dr. Richard Boehme’s practice that involves litigation and services related to serving as an expert.
Progressive argues that all of this information is relevant, as Progressive anticipates that NANF will attempt to demonstrate bias on the part of the Progressive Expert/CME physician, Dr. Hartwig. Dr. Hartwig is required to disclose much of the above information pursuant to statute and the Rules of Civil Procedure.
Florida Statute §627.736(7)(a) requires physicians that perform PIP compulsory medical examinations to:
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 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.
Progressive admits that Dr. Hartwig would be considered a “physician preparing a report at the request of an insurer.” As such, Dr. Hartwig would be required to disclose the F.S. §627.736(7)(a) information. Progressive seeks similar disclosure from Dr. Boehme. Progressive argues that NANF will attempt to show bias based on the number of insurance CME’s that Dr. Hartwig allegedly performs. However, F. S. §627.736(7)(a) makes this information regarding Dr. Hartwig’s expert CME experience relevant and discoverable.
Progressive alleges that Dr. Boehme also regularly testifies as a medical expert, including the performance of CME’s. Progressive seeks that information from Dr. Boehme to establish that Dr. Boehme performs CME’s which then might counter any inference that CME findings are unreliable. By demonstrating that Dr. Boehme has testified as an expert in other litigation, Progressive seeks to discount any perceived bias regarding expert physicians when compared to treating physicians.
Florida courts have consistently maintained the distinction between a “treating physician” and an “expert witness.” In Ryder Truck Rental v. Perez, 715 So. 2d 289, (3rd DCA 1998) the court underscored the substantive difference between a treating doctor and a retained expert.
An expert acquires their expert knowledge for purposes of litigation. In Ryder, Perez was treated by Dr. Gordon and Dr. Hershowitz. Ryder had Perez submit to an orthopedic CME and a Neurologic CME. In addition to the two CME experts, Ryder listed Dr. Gordon and Dr. Hershowitz as witnesses. The trial court would not allow the treating doctors to testify citing the “one expert per specialty” rule. The appellate court reversed, stating: “(T)reating physicians do not acquire their ‘expert knowledge for the purpose of litigation but rather simply in the [*291] course of attempting to make [their] patient well.’ Drs. Gordon and Herskowitz, as Perez’ treating physicians, should not have been classified as expert witnesses, but as ordinary fact witnesses. . .”
In the present dispute, Dr. Boehme was the treating physician and acquired his knowledge in the course of treating the insured. Dr. Boehme did not acquire his knowledge in anticipation of litigation. Conversely, Dr. Hartwig was solely hired to examine the insured for purposes of rendering a medical opinion, not to the patient/insured, but to the insurer. The Florida Supreme Court has noted,
When resort to an [independent medical examination] is necessary by either party, the parties’ relationship is clearly adversarial, and a physician performing an IME should be treated as the requesting party’s expert witness. . . United States Sec. Ins. Co. v. Cimino, 754 So. 2d 697, 700 (Fla. 2000).
Dr. Hartwig’s knowledge regarding medical information concerning the insured, was in anticipation of litigation.
This court also finds persuasive B & L Serv. v. Concepcion, 646 So. 2d 802, (4th DCA 1994) which is almost directly on point. B & L Serv. v. Concepcion, involved discovery from witnesses to a motor vehicle accident. The witnesses were employed by the corporate owner of the at fault vehicle, B & L Services. The witnesses/corporate employees, would be testifying as to their knowledge of who was at fault in the motor vehicle accident. The Plaintiff, Concepcion, sought to require the “employees of defendant corporations to disclose their income from, and their percentage of ownership in, defendant corporations, on the ground that it could show bias.” Id at 802. The 4th DCA quashed the trial court order requiring the financial disclosure and held that:
Here, the persons ordered to disclose the financial information are witnesses to the facts surrounding the accident or the relationship between the defendant corporations. They have become witnesses by virtue of their employment, not, as in the case of an expert, by agreeing to testify in return for payment. As two of our sister courts have concluded, when the expert agrees to testify for remuneration, the claim of privacy is relinquished.” Id at 802.
Dr. Boehme is the Plaintiff’s employee. Dr. Boehme may well be the majority owner, however, Dr. Boehme is expected to testify as the treating physician and to the issues of medical necessity. Dr. Boehme’s alleged prior CME experiences are not relevant to the issues that a treating physician would testify about.
The court finds further authority in Winn-Dixie Stores, Inc. v. Miles, 616 So. 2d 1108, (5th DCA 1993) which is closely on point. The Plaintiff, Miles, brought suit against Winn Dixie. Winn Dixie learned that Dr. Thomas Yandell had treated Miles for injuries related to the litigation. Winn Dixie noticed a deposition duces tecum directed to Yandell’s record custodian which included the following request:
3. The availability of a list of all attorneys for whom Dr. Thomas Yandell, has recommended to his patients within twelve [**2] months prior to the date of this deposition notice and the availability of a list of all attorneys for whom Dr. Thomas Yandell, has performed medical examinations on patients represented by those attorneys . . .
4. The number of patients for whom Dr. Thomas Yandell has treated who are represented by Plaintiff’s counsel within the last twelve months . . .
5. The number of patients for whom Dr. Thomas Yandell, has treated who are represented by present Plaintiff’s counsel, Steven Kirschner, or other members of their firm, associates, etc.
6. The amount of time, effort, skill, expertise and expense which would be required to collect and copy medical record examination reports and bills prepared by Dr. Thomas Yandell, [*1110] within the last twelve months on patients represented by counsel in general and by Plaintiff’s counsel, Steven Kirschner.
7. The total gross income billed for all professional services for Dr. Thomas Yandell, for a twelve month period prior to the deposition notice. In lieu of providing a dollar figure, the person designated on behalf of the corporation may answer questions concerning income by testifying what portion of the total gross income of Dr. Thomas Yandell, [**3] during the last twelve months was generated as a result of medical examinations and what portion of the total gross income was a result of all other professional activities including treatment, depositions, court room testimony for patients represented by counsel.
8. The frequency medical examinations have been performed by Dr. Thomas Yandell, in the last twelve months on patients represented by counsel.
9. An estimate of the proximate cost of producing all medical examination reports made for any attorney as a result of any medical examination of a Plaintiff in any pending case in Central Florida within the twelve months prior to the date of this notice and copies of bills to the Plaintiff attorney, paralegal or other agent or representative of the Plaintiff attorney, paid for the examination and reports.
* * *
11. For the one year period prior to the date of this deposition notice, the number of patients seen at the request of Plaintiffs’ attorneys by Dr. Thomas Yandell.
Yandell’s counsel, opposed the discovery as burdensome and the trial court found that the requested information was “beyond any legitimate discovery request of a treating physician. . .” Id at 110. The 5th DCA affirmed the lower court and stated:
Regarding the weight to be given to Yandell’s confidentiality interests, the Wood court noted that expert witnesses essentially relinquish their privacy rights when they agree to testify for remuneration. (citing to Wood v. Tallahassee Memorial Regional Medical Center, Inc., 593 So. 2d 1140 (1st DCA 1992). This reasoning makes sense when one considers that expert witnesses inject themselves into litigation and, by so doing, impliedly waive any right to object to invasive discovery requests designed to reveal bias. In the instant case, however, Yandell is not an expert witness. Rather, he is the plaintiff’s treating physician. He did not choose to participate in this litigation but merely agreed to treat a patient who sought out his services. As the treating physician, Yandell did not waive any confidentiality concerns, and they should be given substantial weight in the balancing test.
In the instant matter, should Dr. Boehme testify, Dr. Boehme will testify as the “treating physician” and not as a retained expert. Dr. Boehme would be a witness by virtue of his employment and his testimony would be as a treating physician. That Dr. Boehme is also a NANF stockholder may of course be considered by the jury as a source of potential bias, but Dr. Boehme’s involvement with any prior IME’s or peer reviews is immaterial as to the medical necessity of the February 27, 2005 treatment.
This requested information has no relevance as to whether the February 27, 2005 treatment was medically necessary, which is the only issue. The Defendant is impermissibly attempting to require Dr. Boehme, a non-party, to supply information that is relevant only as to an expert, that is, one who gains his knowledge only for purposes of the litigation.
Rules of Civil Procedure 1.280 provides for the scope of discovery regarding an expert:
(4) Trial Preparation: Experts. — Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A) (i) By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(ii) Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with rule 1.390 without motion or order of court.
(iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:
1. The scope of employment in the pending case and the compensation for such service.
2. The expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants.
3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
4. An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.
An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(4)(C) of this rule concerning fees and expenses as the court may deem appropriate.
Dr. Boehme did not acquire his “facts known and opinions held by experts, . . . acquired or developed in anticipation of litigation or for trial.” Dr. Boehme acquired his knowledge concerning the medical necessity of the disputed February 27, 2005 medical treatment by treating the patient from September 30, 2004 at least through February 27, 2005, and not in anticipation of litigation. Therefore, FRCP 1.280(b)(4)(A)(i) does not apply. The rule clearly states that it applies to experts and facts or opinions developed or gained in anticipation of litigation. Dr. Boehme’s previous litigation history is not relevant as to the medical necessity of the February 27, 2005 medical treatment.
Florida Rules of Civil Procedure 1.280(c) provides:
Protective Orders. — Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires
. . .
The requested discovery is not relevant and is an annoyance and undue burden for a treating physician. Florida law clearly distinguishes between “treating physician” and “expert” and establishes unique discovery rules depending on that classification. In the instant case, Dr. Boehme is a treating physician who is also a stockholder of the Plaintiff. As the jury will have to balance Dr. Hartwig’s testimony, as an examining doctor and a retained expert, so too will the jury balance Dr. Boehme’s testimony as the treating doctor and as a stockholder. This is not a novel challenge, as Duval County juries, as well as juries throughout the state, balance opposing interest in almost every civil jury trial. Plaintiff’s Motion for a Protective Order is granted, along with Plaintiff’s unopposed Motion for Extension of Time to answer the remaining interrogatories. Plaintiff shall have thirty days from the date of this order to answer Defendant’s remaining interrogatories.
