15 Fla. L. Weekly Supp. 494b
Insurance — Personal injury protection — Discovery — Doctor selected to perform independent medical examination is ordered to produce copies of reports of all IMEs and peer reviews performed during three-year period before date of last report prepared in case — Where records sought are reports IME doctor is required by PIP law to retain, request meets rule 1.280(b)(4) requirement of “unusual and compelling circumstances” for requiring expert to produce business records
ADVANCED CHIROPRACTIC AND MEDICAL CENTER CORP. (a/a/o Jeanty Pierre), Plaintiff, vs. U.S. SECURITY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-15129 COCE 53. February 28, 2008. Robert W. Lee, Judge. Counsel: Kathy Eikosidekas, Law Offices of Marks & Fleischer, P.A., Fort Lauderdale, for Plaintiff. Adolfo A. Podrecca, Fort Lauderdale, for Defendant.
CERT. DENIED at 15 Fla. L. Weekly Supp. 888a
ORDER ON DEFENDANT’S OBJECTION AND MOTION FOR PROTECTIVE ORDER
THIS CAUSE came before the Court on February 22, 2008 for hearing of the Defendant’s Objection and Motion for Protective Order, 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. In this PIP case, the Plaintiff has subpoenaed Dr. Joseph Marfisi to produce copies of all IME and Peer Reviews that Dr. Marfisi has performed pursuant to Fla. Stat. §627.736(7)(a) for the past three years (from approximately May 2004 through and including May 2007). Dr. Marfisi is the physician selected by Defendant to conduct an independent medical examination on the patient.
The Defendant, on behalf of Dr. Marfisi, has filed its objection, claiming that the “subpoena is too broad, oppressive, unreasonable, too burdensome, requiring highly expensive research and not reasonably leading to any relevant or material evidence.” The Defendant also argues that records of IMEs are “irrelevant and not discoverable.” The Defendant further argues that the Plaintiff may obtain records from its IME expert only pursuant to Rule 1.280(b)(4).
Conclusions of Law. Florida Statute §627.736(7)(a) provides in pertinent part that an IME physician in a PIP case “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.” This provision was added in 2003 “[t]o help improve honest IME reporting.” R. Lazega, Florida Motor Vehicle No-Fault Law §7:1 (2006). The Defendant argues that this provision does not mean that the provider is entitled to receive or view copies of these records.
Rule 1.280(b)(4) provides that “[a]n expert may be required to produce [. . .] business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents.” This rule was adopted by the Florida Supreme Court in 1996, prior to the statutory change in the PIP law requiring retention of IME reports. This rule was adopted in response to the Supreme Court’s decision in Elkins v. Syken, 672 So.2d 517 (Fla. 1996).
Importantly, the Plaintiff is not seeking the extensive financial and medical records at issue in Elkins. Rather, the Plaintiff is seeking limited production of the very records the Florida Legislature has ordered the physician to retain. As a result, the Court finds that the request meets the “unusual and compelling circumstances” exception provided in the rule.
The Court has not been provided any appellate decision on this decision, nor has the Court been able to find any. However, the reported trial court decisions all appear to favor production of the records. See Neurology Associates of North Florida, Inc. v. Progressive American Ins. Co., 14 Fla. L. Weekly Supp. 78 (Duval Cty. Ct. 2006); Diagnostic Medical Center, Inc. v. Progressive Auto Pro Ins. Co., 13 Fla. L. Weekly Supp. 829 (Hillsborough Cty. Ct. 2006); Center for Orthopedic Surgery and Sports Medicine v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 906 (Palm Beach Cty. Ct. 2005); Gary H. Weiss, D.C. v. Nationwide Mutual Fire Ins. Co., 13 Fla. L. Weekly Supp. 512 (Seminole Cty. Ct. 2006); Sacht v. Safeco Ins. Co. of Illinois, 13 Fla. L. Weekly Supp. 1222 (Palm Beach Cty. Ct. 2006); Belvis v. Allstate Ins. Co., 12 Fla. L. Weekly Supp. 398 (Seminole Cty. Ct. 2004); Central Magnetic Imaging Open MRI of Plantation, Ltd. v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 88 (Miami-Dade Cty. Ct. 2004); Meloskie v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 767 (Escambia Cty. Ct. 2005); Meloskie v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 363 (Escambia Cty. Ct. 2005). Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s Objection is OVERRULED and Motion for Protective Order is DENIED. Dr. Marfisi is hereby ordered to produce copies of all IME and Peer Reviews performed pursuant to Florida Statute §627.736(7) during the three-year period before the date of the last report prepared in this case. The patient name and social security numbers shall be redacted. Dr. Marfisi is entitled to reasonable costs for copying these records, but not for labor.
