16 Fla. L. Weekly Supp. 476a
Online Reference: FLWSUPP 165BLANC
Insurance — Personal injury protection — Discovery — Medical records of nonparties — With proper discovery safeguards and limitations in place, objections to production of reports of independent medical examinations performed by IME physician for insurer prior to and subsequent to IMEs of insured are overruled where requested discovery falls within purview of PIP statute requiring IME physician to maintain records and does not seek information recognized as medical record or confidential information of other claimants
AFFILIATED HEALTHCARE CENTERS, INC., as Assignee of Maria Blanco, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 06-13291 SP 05 (08). February 9, 2009. Wendell M. Graham, Judge. Counsel: Garrett Zediker and Emilio R. Stillo, Florida Trial Team LLC, Weston, for Plaintiff. Melissa Soriano, Pacheco Perez Ortiz, PA, for Defendant.
ORDER OVERRULING DEFENDANT’S OBJECTIONS TO PLAINTIFF’S SUPPLEMENTAL PRODUCTION REGARDING § 627.736(7)(a) REPORTS
THIS CAUSE, having come before the Court for consideration on Plaintiff’s, Affiliated Healthcare Centers, Inc., a/a/o Maria Blanco, motion to overrule Defendant’s Objections to Plaintiff’s Supplemental Production.
Background. In this PIP case, the Plaintiff to this action propounded specific discovery requests seeking limited production of the very records the Florida legislature has ordered an IME physician in a Personal Injury Protection, “PIP” case to retain pursuant to Fla. Stat. § 627.736(7)(a). Specifically, the plaintiff limited the request to (25) Compulsory or Independent Medical Examination, “IME”, reports performed by the carrier’s chiropractor Dr. Neil Fleischer and medical doctor Dr. Pedro Musa-Ris prior to/and subsequent to the IMEs of Maria Blanco the insured to this matter. The request was further confined to solely those IME(s) performed for the Defendant. The Defendant maintains the reports electronically as part of its paperless claims handling system. Counsel for the Defense further agreed that the Defendant has previously provided interrogatory responses sworn to by the Defendant’s litigation adjuster specifying the percentage of time the benefits are cut off for an unspecified number of claimants or time period. Plaintiff counsel argued the request was confined solely to IME(s) performed for the Defendant, and agreed that said reports could be redacted to remove any information regarding the examinees’ identities or personal information. The Defendant simply objected to the subject request as irrelevant, overly burdensome and not reasonably calculated to lead to admissible evidence.
Conclusions of Law. Florida Statute § 627.736(7)(a) provides in part that an IME physician in a PIP case “shall maintain for at least 3 years, records 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 Florida Supreme Court, in Boucher v. Allstate, 733 So.2d 993, explained the principles behind mandating discovery regarding the relationship of a party, specifically an insurance carrier, to a particular expert. The request seeks only discovery regarding the relationship, i.e., IME(s) performed solely for the Defendant. The subject discovery falls squarely within the ruling laid out by the Boucher court and the progeny of law that followed. In Boucher, the Court held that discovering the extent of the relationship between an expert and a party would be “indisputably relevant and meaningful”. Id. The Defense expert is required and obligated to produce these reports. See, U.S. Security v. Advanced Chiropractic, 15 Fla. L. Weekly Supp. 888 (Fla. 17th Circuit Court 2008) affirming Advanced Chiropractic and Medical Center (a/a/o Jeanty Pierre) v. U.S. Security, 15 Fla. L. Weekly Supp. 494b (Hon. Robert W. Lee, Broward County Court). These reports and the amount of time these experts opine that no additional medical treatment for injured persons, is reasonable, related and necessary is discoverable, material and relevant based on the facts of this case. In Secada v. Weinstein, 563 So.2d 172, the Third District held that the fact the defense orthopedic expert, like the experts in this case, had consistently and repeatedly testified, in other cases, that the injured plaintiffs he examined had suffered no permanent injury was a perfectly proper subject of cross examination to demonstrate his alleged bias and prejudice. Id. at 173 (emphasis added). See also, Flores v. Miami Dade County, 787 So.2d 955 (Fla. 3rd DCA 2001). The Fifth District further elaborated that regardless of an insurer’s status as a “party” or “nonparty”, the relationship between an insurer and expert is discoverable, as here the reports of the defense expert are discoverable from the Defendant, an insurance carrier. Springer v. West, 769 So.2d 1068 (Fla. 5th DCA 2000).
The subject discovery falls within the purview of Fla. Stat. § 627.736(7)(a) and does not seek information that is recognized as a medical record or confidential information for other claimants. The subject IME reports are not considered medical records of the examinees. In his report in the instant case, Dr. Pedro Musa-Ris states “This examinee was informed that she is not my patient and that I was asked to perform an Independent Medical Examination only”. A party who is examined by an independent medical examiner for the sole purpose of determining whether physical factors are present that may confirm or rebut those asserted by the examined party would not be considered a “patient” of the examining physician. West v. Branham, 576 So.2d 381 (Fourth District 1991). Further, Fla. Stat. § 456.072(2)(k) excludes records kept pursuant to § 627.736(7) as protected as confidential patient records. The Florida Supreme Court, in Amante v. Newman, 653 So.2d 1030 (Fla. 1995) addressed the application of § 455.241 (since renumbered as § 456.057) to discovery concerns. In Amante, the Court ordered the discovery of actual medical records for other patients from the treating doctor for a two year period. The court explained that the notice requirements of § 455.241 are inapplicable in situations, like the instant case, where medical records are properly redacted to protect the patient’s identity. In short, because the subject reports may be redacted and do not seek patient records there is no applicable privacy statute or law that applies or would prohibit their production.
ORDERED AND ADJUDGED that said Motion is hereby GRANTED. The proper discovery safeguards and limitations are in place. The Defendant shall produce redacted copies of the IME reports for Dr. Neil Fleischer DC and Dr. Pedro Musa-Ris MD per Plaintiff’s Supplemental Request for Production. This request is limited solely to those IME(s) performed for United Automobile Insurance Company. Further, the request is limited to the (25) IME reports conducted immediately prior and subsequent to the respective chiropractor and medical doctor physical examinations conducted in the instant case. Defendant shall redact any personal information such as name and social security number. The Court is ordering the production of specific discovery seeking limited production of the very records the Florida legislature has ordered an IME physician in a Personal Injury Protection, “PIP” case, to retain pursuant to Fla. Stat. § 627.736(7)(a). The Court agrees 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 use them for discovery purposes. Moreover, without allowing an insured whose benefits have been denied the right to inspect the reports, there is no mechanism to ensure that physicians employed by insurers are maintaining the reports in accord with (7)(a) and thus no mechanism to ensure “honest” IME reporting. The Defendant is ordered to produce the redacted reports within 20 days.
