15 Fla. L. Weekly Supp. 917a
Insurance — Personal injury protection — Discovery — Interrogatories — Objections to interrogatories seeking information regarding amount paid to non-party physician who performed orthopedic consult; whether consulting physician was paid by hour, by number of consults per day or by day; amount consulting physician is paid by medical provider for one day of work; whether cost of doing business was factor in determining consult charge; and factors, documents and sources consulted by provider in determining consult charge are overruled — Admissions — Provider is ordered to respond to request for admission regarding amount charged by different-named entity in year prior to registration of provider’s current fictitious name where different-named entity was same corporation with same tax ID number as provider — Documents — Objections to requests to produce tax forms, pay stubs or other documents showing amounts paid to consulting physician are overruled
BIGLEY & ASSOCIATES, P.A., d/b/a PREMIER ORTHOPEDICS OF ORLANDO as assignee of JUSTIN PIERRE, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 07-SC-2332. June 18, 2008. Antoinette Plogstedt, Judge. Counsel: Michelle Kelson, for Plaintiff. George Milev, Adams & Diaco, P.A., Tampa, for Defendant.
ORDER ON DEFENDANT’S DISCOVERY MOTIONS
THIS CAUSE having come before the Court on Defendant’s Motion to Determine Sufficiency of Plaintiff’s Responses to Defendant’s Fifth Request to Produce, Defendant’s Interrogatory, and Motion to Compel Answers on June 2, 2008, and the Court having heard arguments from counsels for Plaintiff and Defendant, and otherwise being fully advised in the premises hereby
FINDS, ORDERS AND ADJUDGES as follows:
A. This is a PIP lawsuit based on alleged breach of automobile insurance contract.
B. A. At issue is the reasonableness, relatedness and medical necessity of the orthopedic consult performed on Justin Pierre by Dr. Gallo, an independent contractor for Plaintiff, and also the reasonableness of the charges submitted to Defendant for said consult.
C. Defendant propounded its Fifth Request to Produce, Interrogatories and Fourth Request for Admissions and moved to determine the sufficiency of some of Plaintiff’s responses upon receiving said responses. In particular, Defendant addressed the following requests/responses:
AMENDED ANSWERS TO INTERROGATORIES DATED 1/30/08
1. Please state how much Dr. Gallo was paid by Plaintiff for the consultation at issue.
ANSWER: Objection; irrelevant, harassing, annoyance, undue burden and not reasonably calculated to lead to the discovery of admissible evidence. The amount paid to Dr. Gallo, the non-party treating physician, is completely irrelevant to the issue of the reasonableness of the charge. Rule 1.280(b)(1) provides that “parties may obtain discovery regarding any matter, not privileged, that is relevant for the subject matter of the pending action. . .” Further, trade secret and violates the proprietary rights of Plaintiff and confidentiality rights of a nonparty treating physician. Dr. Gallo is the plaintiff’s treating physician. He did not choose to participate in this litigation but merely agreed to treat a patient who sought his services. He did not acquire his knowledge for the purpose of this litigation. As the non-party, treating physician, Dr. Gallo did not waive any confidentiality concerns, and that fact should be given substantial weight in the balancing test to determine the relevancy of Defense counsel to obtain sensitive financial information that has nothing to do with the issues in this litigation. Defendant has failed to show how Dr. Gallo’s financial information has to do with the issues in this case when the Defendants themselves have testified that they do not consider overhead or any other factors except 200% Medicare when determining reasonableness of the reimbursement or amount allowed. See Winn Dixie Stores v. Miles, 616 So.2d 1108 (Fla. 5th DCA 1993) and B&L Serv. v. Concepcion, 646 So.2d 802 (Fla. 4th DCA 1994). Further, in determining whether to limit the scope of discovery to protect a person’s right of privacy, the trial court must balance the relevant competing interests. Pyszka, Kessler, et al., v. Mullin, 602 So. 2d 955 (Fla. 3rd 1991) citing to Rasmussen v. South Florida Blood Serv., Inc., 500 So.2d 533, 538 (Fla.1987); Peisach v. Antuna, 539 So.2d 544 (Fla. 3d DCA 1989).
In addition, see the depositions of Defendant’s corporate representatives, Doug Helton and Cheryl Shaw.
Doug Helton stated in his deposition taken October 12, 2007, and previously filed with the court in this matter, that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule.
Cheryl Shaw, stated in her deposition taken March 6, 2008 (not yet transcribed), that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule. In addition, she stated that Progressive does not consider Plaintiff’s overhead costs when determining reimbursement rates/amount allowed.
It is hereby ORDERED that Plaintiff’s objections are OVERRULED and Plaintiff shall serve a verified response to said Interrogatory within 20 days of this Order.
2. Please state whether Dr. Gallo is paid by the hour, by the number of consults per day or by the day.
ANSWER: Objection; irrelevant, harassing, annoyance, and not reasonably calculated to lead to the discovery of admissible evidence. The amount paid to Dr. Gallo, the nonparty treating physician, is completely irrelevant to the issue of the reasonableness of the charge. Further, trade secret and violates the proprietary rights of Plaintiff, However, Both Dr. Gallo and Dr. Bigley have testified that Dr. Gallo is paid per day regardless of how many patients he may or may not see.
It is hereby ORDERED that Plaintiff’s objections are OVERRULED and Plaintiff shall serve a verified response to said Interrogatory within 20 days of this Order.
3. Please state how much Dr. Gallo is paid by Plaintiff for one day work.
ANSWER: Objection; irrelevant, harassing and trade secret. Without waiving said objections:
Also, see page 34 of the deposition of Dr. Bigley taken November 5, 2007 and previously filed with the court in this matter, wherein Dr. Bigley stated that Dr. Gallo is paid by the day regardless of whether he sees no patients or sees a lot of patients.
In addition, see page 27 of the deposition of Dr. Gallo taken August 9, 2007 and previously filed with the court in this matter, wherein Dr. Gallo stated he is paid by the day, not by the consult.
Further, see page 42 of the deposition of Doug Helton taken October 12, 2007 and previously filed with the court in this matter, wherein Doug Helton stated that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule.
It is hereby ORDERED that Plaintiff’s objections are OVERRULED and Plaintiff shall serve a verified response to said Interrogatory within 20 days of this Order.
5. Please state whether the cost of doing business was a factor taken into consideration in determining the $500 charge submitted to Defendant.
ANSWER: Objection; irrelevant, harassing, annoyance, and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving said objections, the charge of $500 submitted to Defendant for services rendered to Justin Pierre was established years prior to Justin Pierre’s date of service at issue in this matter.
In addition, see the depositions of Defendant’s corporate representatives, Doug Helton and Cheryl Shaw.
Doug Helton stated in his deposition taken October 12, 2007, and previously filed with the court in this matter, that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule.
Cheryl Shaw, stated in her deposition taken March 6, 2008 (not yet transcribed), that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule. In addition, she stated that Progressive does not consider Plaintiff’s overhead costs when determining reimbursement rates/amount allowed.
It is hereby ORDERED that Plaintiff’s objections are OVERRULED and Plaintiff shall serve a verified response to said Interrogatory within 20 days of this Order.
7. Please list all the factors, documents in any form and any other sources consulted by Plaintiff that were taken into consideration in determining the $500 charge/bill at issue submitted to Defendant.
ANSWER: Objection; irrelevant, harassing, annoyance, undue burden and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving said objections, the charge of $500 submitted to Defendant for services rendered to Justin Pierre was established years prior to Justin Pierre’s date of service at issue in this matter. See deposition of Dr. Bigley taken November 5, 2007 and previously filed with the court in this matter.
In addition, see the depositions of Defendant’s corporate representatives, Doug Helton and Cheryl Shaw.
Doug Helton stated in his deposition taken October 12, 2007, and previously filed with the court in this matter, that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule.
Cheryl Shaw, stated in her deposition taken March 6, 2008 (not yet transcribed), that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule. In addition, she stated that Progressive does not consider Plaintiff’s overhead costs when determining reimbursement rates/amount allowed.
It is hereby ORDERED that Plaintiff’s objections are OVERRULED and Plaintiff shall serve a verified response to said Interrogatory within 20 days of this Order.
9. Please state the amount of rent paid by Plaintiff for the month of November, 2006 for the office where the consult at issue occurred.
ANSWER: Objection; irrelevant, harassing, trade secret and not reasonably calculated to lead to the discovery of admissible evidence. The amount of rent paid by Plaintiff is completely irrelevant to the issue of the reasonableness of the charge and violates the proprietary rights of Plaintiff.
In addition, see the depositions of Defendant’s corporate representatives, Doug Helton and Cheryl Shaw.
Doug Helton stated in his deposition taken October 12, 2007, and previously filed with the court in this matter, that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule.
Cheryl Shaw, stated in her deposition taken March 6, 2008 (not yet transcribed), that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule. In addition, she stated that Progressive does not consider Plaintiff’s overhead costs when determining reimbursement rates/amount allowed.
Plaintiff has agreed to amend its answer to Interrogatory Number 9 and respond without objections within 20 days of this Order.
PLAINTIFF’S RESPONSE TO FOURTH REQUEST FOR ADMISSIONS
1. Admit that Bigley & Associates, P.A., was charging $350 to insurance companies in the year 2003 for CPT code 99244.
RESPONSE: Unable to admit or deny and impossible to respond as Plaintiff, Bigley & Associates, P.A. d/b/a Premier Orthopedics of Orlando was not registered fictitious name until 5/24/04.
It is hereby ORDERED that Plaintiff shall admit or deny said Interrogatory within 20 days of this Order as Bigley & Associates, P.A., was the same corporation with same Tax Id Number in 2003 as the Plaintiff in the current case.
PLAINTIFF’S AMENDED RESPONSE TO FIFTH REQUEST TO PRODUCE
4. A copy of the check, bill or other document showing the amount of rent paid by Plaintiff for the month of November, 2006 for the office/clinic where the consult was performed.
RESPONSE: Objection; irrelevant, harassing, trade secret and not reasonably calculated to lead to the discovery of admissible evidence. The amount of rent paid by Plaintiff is completely irrelevant to the issue of the reasonableness of the charge and violates the proprietary rights of Plaintiff.
In addition, see the depositions of Defendant’s corporate representatives, Doug Helton and Cheryl Shaw.
Doug Helton stated in his deposition taken October 12, 2007, and previously filed with the court in this matter, that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule.
Cheryl Shaw, stated in her deposition taken March 6, 2008 (not yet transcribed), that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule. In addition, she stated that Progressive does not consider Plaintiff’s overhead costs when determining reimbursement rates/amount allowed.
Plaintiff has agreed to amend its answer to Request to Produce, Paragraph Number 4, and respond without objections within 20 days of this Order.
5. A copy of any W-2, 1099 or other tax forms in Plaintiff’s possession showing amounts paid to Dr. Gallo for the year 2006.
RESPONSE: Objection; irrelevant, harassing, annoyance, undue burden and not reasonably calculated to lead to the discovery of admissible evidence. The amount paid to Dr. Gallo, the non-party treating physician, is completely irrelevant to the issue of the reasonableness of the charge. Rule 1.280(b)(1) provides that “parties may obtain discovery regarding any matter, not privileged, that is relevant for the subject matter of the pending action. . .” Further, trade secret and violates the proprietary rights of Plaintiff and confidentiality rights of a non-party treating physician. Dr. Gallo is the plaintiff’s treating physician. He did not choose to participate in this litigation but merely agreed to treat a patient who sought his services. He did not acquire his knowledge for the purpose of this litigation. As the non-party, treating physician, Dr. Gallo did not waive any confidentiality concerns, and that fact should be given substantial weight in the balancing test to determine the relevancy of Defense counsel to obtain sensitive financial information that has nothing to do with the issues in this litigation. Defendant has failed to show how Dr. Gallo’s financial information has to do with the issues in this case when the Defendants themselves have testified that they do not consider overhead or any other factors except 200% Medicare when determining reasonableness of the reimbursement or amount allowed. See Winn Dixie Stores v. Miles, 616 So.2d 1108 (Fla. 5th DCA 1993) and B&L Serv. v. Concepcion, 646 So.2d 802 (Fla. 4th DCA 1994). Further, in determining whether to limit the scope of discovery to protect a person’s right of privacy, the trial court must balance the relevant competing interests. Pyszka, Kessler, et al., v. Mullin, 602 So. 2d 955 (Fla. 3rd DCA 1991) citing to Rasmussen v. South Florida Blood Serv., Inc., 500 So.2d 533, 538 (Fla.1987); Peisach v. Antuna, 539 So.2d 544 (Fla. 3d DCA 1989).
In addition, see the depositions of Defendant’s corporate representatives, Doug Helton and Cheryl Shaw.
Doug Helton stated in his deposition taken October 12, 2007, and previously filed with the court in this matter, that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule.
Cheryl Shaw, stated in her deposition taken March 6, 2008 (not yet transcribed), that reimbursement is not dependent upon how a provider determines its charges, it is simply a maximum reimbursement rate of 200% of the Medicare Fee Schedule. In addition, she stated that Progressive does not consider Plaintiff’s overhead costs when determining reimbursement rates/amount allowed.
It is hereby ORDERED that Plaintiff’s objections are OVERRULED and Plaintiff shall respond to said Request to Produce within 20 days of this Order.
6. A copy of the pay stub, check or other document showing any amounts paid to Dr. Gallo for the consult at issue.
RESPONSE: See objection and response to #5, above.
It is hereby ORDERED that Plaintiff’s objections are OVERRULED and Plaintiff shall respond to said Request to Produce within 20 days of this Order.
7. A copy of the pay stub, check or other document showing any amounts paid to Dr. Gallo that included payment for the consult at issue.
RESPONSE: See objection and response to #5, above.
It is hereby ORDERED that Plaintiff’s objections are OVERRULED and Plaintiff shall respond to said Request to Produce within 20 days of this Order
