15 Fla. L. Weekly Supp. 888a
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
U.S. SECURITY INSURANCE COMPANY, Petitioner, v. ADVANCED CHIROPRACTIC and MEDICAL CENTER CORP., (J. Pierre), Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-14012 (09). L.C. Case No. 07-15129 COCE. July 3, 2008. Counsel: David B. Pakula, David B. Pakula, P.A., Pembroke Pines, for Petitioner. Roberts J. Bradford, Jr., Law Office of R.J. Bradford, Jr., P.C., Johnson City, TN. Marks & Fleischer, Fort Lauderdale. Adolfo A. Podrecca, Ft. Lauderdale.
ORDER ON PETITION FOR WRIT OF CERTIORARI
[Editor’s note: Lower court order published at 15 Fla. L. Weekly Supp. 494b]
(ROBERT LANCE ANDREWS, J.) THIS CAUSE comes before the Court on Petitioner, U.S. Security Insurance Company’s Amended Petition for Writ of Certiorari. The Court hereby dispenses with oral argument, and having reviewed the file, applicable law, and being otherwise fully advised in the premises, the Court hereby decides as follows:
In this PIP case, the Respondent subpoenaed Dr. Joseph Marfisi to produce copies of all the IME and Peer Reviews that Dr. Marfisi has performed for the past three years, pursuant to Fla. Stat. §627.736(7)(a). Dr. Marfisi is the physician selected by the Petitioner to conduct an independent medical examination on the patient.
The Petitioner, on behalf of Dr. Marfisi, filed its objection to the subpoena, charging that it is, among other things, “expensive,” “irrelevant and not discoverable” and “privileged.” The Petitioner also maintains that Florida Rule of Civil Procedure 1.280(c) protects it from discovery requests that are annoying, oppressive, unduly burdensome, and expensive. On February 28, 2008, the trial court denied Petitioner’s Objection and approved Respondent’s discovery request regarding Dr. Marfisi [15 Fla. L. Weekly Supp. 494b]. A hearing was held on Respondent’s Motion for Rehearing or Clarification on March 10, 2008 at which the trial court ordered Dr. Marfisi to comply with the discovery order within 30 days from the date of the March 10, 2008 Order. On April 8, 2008, the trial court ordered the Respondent to tender a deposit of $5,000 to Dr. Marfisi “to begin the compilation and copying” of the records. Dr. Marfisi was ordered to have three years worth of reports produced in 30 days. On May 8, 2008, Petitioner filed its Amended Petition for Writ of Certiorari, requesting this Court enter an order quashing the February 28, 2008, March 10, 2008, and April 8, 2008 orders.
When a petition for writ of certiorari is before the court, it must first be reviewed to determine if the petitioner has made a showing that if certiorari is not granted, material injury resulting in irreparable harm will result. Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996). For a district court to reverse a trial court order by writ of certiorari, the order must also be a violation of clearly established law that, if upheld, would result in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000). Trial court orders that allow parties to take discovery are given broad discretion. Baker v. Eckerd Corp., 697 So.2d 970, 971 (Fla. 2nd DCA 1997). “Only when an order allowing discovery constitutes an abuse of discretion which would cause irreparable damage should the ruling be set aside.” Id.
In the instant case, the Petitioner claims that the Respondent’s discovery request violates the restrictions on expert witness discovery set forth in Fla. R. Civ. P. 1.280(b)(4). Rule 1.280(b)(4) provides that “[a]n 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.” This rule was adopted by the Florida Supreme Court in 1996, prior to the statutory change in the PIP law, (Florida Statute § 627.736(7)(a)), in response to the Supreme Court’s decision in Elkins v. Syken, 672 So.2d 517 (Fla. 1996). However, unlike the Plaintiff in Elkins, the Respondent is not seeking the extensive financial and medical records at issue in Elkins. Rather, the Respondent is seeking limited production of the very records the Florida Legislature has ordered an IME physician in a PIP case to retain in Florida Statute § 627.736(7)(a). 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 Court agrees with the Respondent that it would be senseless for the legislature to require IME physicians to keep these records without contemplating that a party to a PIP suit would not use them for discovery purposes.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED. Dr. Marfisi shall produce the documents Ordered as per the trial court’s Order on Defendant’s Objection and Motion for a Protective Order within sixty (60) days from the date of this Order. If the compilation of the documents is unable to be completed within this time allotted, Dr. Marfisi shall produce all such documentation compiled within sixty 60 days, and set forth specifically what additional documentation remains to be produced, and set forth any additional time necessary to fully comply with the trial court’s Order, which may be addressed by the trial court at this time. As per the trial court’s Order on Defendant’s Objection and Motion for a Protective Order, the patient’s names and social security numbers shall be redacted. Additionally, as per the trial court’s Order, the Respondent shall pay Dr. Marfisi for reasonable copy charges for these records, but not for labor.
It is further ORDERED AND ADJUDGED that the Respondent’s Motion for Appellate Attorney’s Fees is DENIED, as no judgment has been issued in this case.
