15 Fla. L. Weekly Supp. 1127b
Insurance — Personal injury protection — Discovery — Physician who conducted independent medical examination is required to produce copies of reports for all IMEs and peer reviews performed in past three years — In deference to concern for patients’ privacy, court limits disclosure to portion of each report reflecting date of examination and physician’s impressions or conclusions and establishes other safeguards
ADVANCED CHIROPRACTIC AND MEDICAL CENTER CORP. (a/a/o Elsie Mitchell), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-4164 COCE 53. September 16, 2008. Robert W. Lee, Judge. Counsel: Kathy Eikosidekas, Fort Lauderdale, for Plaintiff. Cassandra Jeffries, Fort Lauderdale, for Defendant.
QUASHED at 16 Fla. L. Weekly Supp. 233a
ORDER GRANTING PLAINTIFF’S AMENDED MOTION TO COMPEL COMPLIANCE WITH SUBPOENA DUCES TECUM
THIS CAUSE came before the Court on August 22, 2008 for hearing of the Plaintiff’s Amended Motion to Compel, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background. On August 11, 2008, the Plaintiff filed its Amended Motion to Compel Compliance with Subpoena Duces Tecum Without Deposition from Non-Party IME Doctor Joseph Marfisi. In the subpoena, the Plaintiff requested “copies of all IME and Peer Reviews that Dr. Marfisi has performed pursuant to Florida Statute §627.736(7) in the three years before the date of the last report prepared in this case.” According to the Plaintiff, Dr. Marfisi did not respond to the subpoena. A copy of the Motion was served on Dr. Marfisi by U.S. mail.
The Court set the matter for hearing for August 22, 2008. In addition to the Plaintiff and Defendant, Dr. Marfisi was also provided by the Court written notice of the hearing. Notwithstanding such Notice, Dr. Marfisi did not appear at the hearing.
In an unrelated case, this Court granted such a request involving the same doctor and this Court’s ruling was upheld by the appellate court. U.S. Security Ins. Co. v. Advanced Chiropractic and Medical Center Corp., 15 Fla. L. Weekly Supp. 888 (17th Cir. Ct. 2008). In the instant case, however, the Defendant has raised a privacy objection that was not made in the U.S. Security case. Specifically, the Defendant cites a recent case from the Second District Court of Appeal, Graham v. Dacheikh, 33 Fla. L. Weekly D2015 (Fla. 2d DCA Aug. 20, 2008).
In Graham, the trial court required that a non-party physician produce copies of medical examination reports prepared by the physician for a period of three years when done under the Rules of Civil Procedure. The order did not contain “any provisions for confidentiality,” nor did it provide notice to those parties subject to the examinations. The appellate court cited Fla. Stat. §456.057(7)(a)(3) which provides that medical records can be released only upon “proper notice to the patient or the patient’s legal representative by the party seeking such records.” Id. at D2016. The Graham court did acknowledge, however, that the noticing party would be placed in a “catch-22” if the party could not provide notice to the parties because it is only the production of the records which will divulge this information. The court further noted that a Florida court can override the notice requirement “by providing adequate alternative means to protect other patient’s privacy rights when a party has made a showing that the court cannot comply with the statute under circumstances that justify disobeying the statute.” Id. The appellate court offered two suggestions for “providing adequate alternative means” of protection: (1) “order that the records be sealed and allow only the parties’ attorneys and medical experts to have access to the medical records”; and (2) limiting the disclosure to the “doctor’s impression or conclusions at the end of his report.” Id.
In the U.S. Security decision, the appellate court noted the statutory basis for the production of these reports in a PIP case, and it upheld this Court’s rationale in requiring disclosure. This Court will not reiterate the rationale, but notes it still applies under the analysis suggested by Graham. Based on the PIP statute’s specific requirement that these records be maintained in a PIP case, the Court continues to believe that a Plaintiff is entitled to view copies of these documents. However, upon consideration of the privacy concerns set forth in Graham, this Court limits disclosure to that portion of the IME or Peer Review Report which reflects the date of the examination, and the doctor’s impression or conclusions generally contained at the end of the report. See Graham, 33 Fla. L. Weekly at D2017. The physician’s office shall redact the patient’s name and any other identifying biographical data. Further, the cost of copying shall be borne by Plaintiff, and shall be delivered to Plaintiff’s attorney under seal. Neither the Plaintiff, Plaintiff’s attorney nor any other person shall make any further photocopies of these redacted reports (except for the transmitting physician). These copies may not be shared with or shown to anyone else. These reports shall be consecutively paginated either manually or by Bates stamp, or the like. At the conclusion of this cause, these exact pages must be returned to the transmitting physician. The Plaintiff may keep a log indicating the date of examination and the gist of the doctor’s impressions or conclusions. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Amended Motion to Compel Compliance with Subpoena Duces Tecum is GRANTED, as set forth in this Order.
