15 Fla. L. Weekly Supp. 946b
Insurance — Personal injury protection — Discovery — Physician who conducted independent medical examination is required to comply with subpoena seeking copies of all IME and peer reviews performed during three-year period before date of last report prepared in case
ADVANCED CHIROPRACTIC & MEDICAL CENTER CORPORATION, (Kenson Louis-Jeune), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 07-20786 (53). July 1, 2008. Robert W. Lee, Judge. Counsel: Kathy Eikosidekas, Law Offices of Marks & Fleischer, P.A., Fort Lauderdale, for Plaintiff.
QUASHED at 16 Fla. L. Weekly Supp. 732b
ORDER ON PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH SUBPOENA DUCESTECUM WITHOUT DEPOSITION FROM NON-PARTYIME DOCTOR MICHAEL MANSDORF
THIS CAUSE came before the Court on May 13, 2008 for hearing on the Plaintiff’s Motion to Compel Compliance with Subpoena Duces Tecum without Deposition from Non-Party IME Doctor Michael Mansdorf, 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. Michael Mansdorf to produce copies of all IME and Peer Reviews that Dr. Mansdorf has performed pursuant to Fla. Stat. §627.736(7)(a) for the past three years (from approximately October 2004 through and including October 2007). Dr. Mansdorf is the physician selected by Defendant to conduct an independent medical examination on the patient.
Dr. Mansdorf objected to the subpoena by way of letter dated March 14, 2008 claiming that the subpoena request is “abusive, unnecessary, time consuming and costly” and that he estimated that it would require him to expend 833 hours at $475 per hour to compile the records requested. Dr. Mansdorf, was duly noticed for the May 13, 2008 hearing.
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 Defendant cites this Court to the appellate decision of Progressive Express Ins. Co., v. Quality Medical Group, Inc., (a/a/o Zeida Calderon) 12 Fla. L. Weekly Supp. 1020a (Miami-Dade Cir. Ct. 2005) which reversed the lower court’s order requiring production of one year’s worth of IMEs and Peer Reviews performed by Progressive’s Expert. The production request sought these documents directly from Progressive. The appellate court relied on the decisions of Allstate Ins. Co., vs. Boecher, 733 So.2d 993 (Fla. 1999) and Elkins v. Syken, 672 So.2d 517 (Fla. 1996) in ruling that the one year request was too broad and reasoning that ordering production of IME and peer review reports “delves too deeply into collateral matters” where there are less intrusive methods to obtain the information sought. The Court limited the discovery in accordance with Boecher. The court did note that “Quality’s reliance on the plain language of Florida Statute Section 627.736(7)(a) (2003) is misplaced, especially since the statute itself characterizes the reports as “medical records” and further indicates that the physician, not entities such as Progressive, maintain the reports.” Similarly, Defendant’s reliance on this case is misplaced. The statute places the burden on the physician to maintain the records, not on the Defendant insurer. The Plaintiff in the instant case seeks production of the IMEs and Peer Reviews directly from the physician, not from the Defendant insurer as was the case in Quality Medical. As such, Quality Medical is distinguishable.
The Court has not been provided any other appellate decisions on this issue, 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 Plaintiff’s Motion to Compel Compliance with Subpoena Duces Tecum without Deposition from Non-Party IME Doctor Michael Mansdorf is GRANTED. Dr. Mansdorf 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 within 30 days from the date of this order. The patient name and social security numbers shall be redacted. Dr. Mansdorf is entitled to reasonable costs for copying these records, but not for labor.
