16 Fla. L. Weekly Supp. 336a
Online Reference: FLWSUPP 164VELA
Insurance — Personal injury protection — Discovery — Medical records of nonparties — Subpoena duces tecum seeking reports of all IMEs and peer reviews performed by insurer’s expert witness within past three years and financial documents reflecting payments to expert is beyond scope of discovery and violates HIPPA — Amendment to PIP statute requiring physicians to retain records for three years has no relevance to appropriate scope of discovery, which is defined by Rules of Civil Procedure
HIALEAH MEDICAL ASSOCIATES, INC., a/a/o CARLOS VELA, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-08420 SP 05. September 22, 2008. Wendall M. Graham, Judge. Counsel: Jay M. Levy. Carlos A. Lopez, Jr.Order Quashing Subpoena Duces Tecum
THIS CAUSE CAME on to be heard before the Court upon Records Custodian of David B. Goldberg, M.D. Motion to Quash Subpoena Duces Tecum, and the Court having entertained several hearings on this matter, and having reviewed the motion and memoranda file by the parties, and being otherwise fully advised in the premises, Finds as follows:
1. Dr. David B. Goldberg is a physician licensed to practice medicine in the State of Florida who either examined or performed a records review of Plaintiff’s subrogor, Carlos Vela.
2. Dr. David B. Goldberg is not a party to this proceeding, but is an expert within the meaning of Fla.R.Civ.Pro. 1.280(a)(4).
3. Plaintiff served a Subpoena Duces Tecum upon the Records Custodian of Dr. David B. Goldberg requesting documents. Dr. David B. Goldberg had no objection to producing the documents requested by ¶¶1, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 17 of the Subpoena Duces Tecum and those are not at issue here. What is at issue is ¶¶2, 3, 4, and 5 of the Subpoena Duces Tecum. These paragraphs seek the following documents:
2. All 1099 forms, cancelled checks, accounting records, computerized records or other writings of any kind documenting payment of any kind to David B. Goldberg, M.D., and/or David B. Goldberg, M.D., P.A. who reviewed any of the medical bills or the treatment of insured in this case or examined insured for a period of one year before the claim in this case and one year after the claim was filed in this case.
3. Copies of all reports of all Independent Medical Examinations and Peer Reviews performed by David B. Goldberg, M.D. and/or David B. Goldberg, M.D., P.A. for United Automobile Insurance Company in the past three (3) years. If you are unable to differentiate because a third party vendor is involved, then bring all the reports issued by you and provided to such third party vendor.
4. Copies of all reports of all Independent Medical Examinations and Peer Reviews performed by David B. Goldberg, M.D., and/or David B. Goldberg, M.D., P.A. in the past three years.
5. Copies of all 1099s received by David B. Goldberg, M.D., and/ or David B. Goldberg, M.D., P.A. from any and all vendors that scheduled IMEs or Peer Reviews for the past three (3) years.
4. Dr. Goldberg has moved to quash the Subpoena Duces Tecum and contends by this motion that the discovery of the documents sought by ¶¶2, 3, 4, and 5 therein are beyond the scope of discovery and not permissible under Fla.R.Civ.Pro. 1.280(b)(4)(a)(iii) and the Florida Supreme Court’s decision in Elkins v. Syken, 672 So.2d 517 (Fla. 1996). Fla.R.Civ.Pro. 1.280(b)(4)(a)(iii) indicates that an expert witness must only disclose the following:
1. The scope of employment in the pending case and the compensation for such service.
2. The expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants.
3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
4. An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.
The rule concludes that an expert may be required to produce financial and business records only under the most unusual or compelling circumstances.
5. The Subpoena Duces Tecum served by Plaintiff exceeds the scope of discovery allowed by Fla.R.Civ.Pro. 1.280(b)(4)(a)(iii). The Subpoena Duces Tecum seeks documents relating to Dr. Goldberg’s services to individuals other than Plaintiff’s subrogor and seeks financial documents which are clearly beyond the scope of discovery allowed by Rule 1.280(b)(4)(a)(i) with regard to expert witnesses. In addition, the Subpoena Duces Tecum violates HIPPA by requiring the disclosure of confidential patient information as to individuals other than Plaintiff’s subrogor.
6. Plaintiff argues that it is entitled to these documents pursuant to the Legislature’s promulgation of the portion of §627.736, Fla.Stat. which requires physicians to maintain for at least three years, copies of all examination reports and records of payments for the examination and reports. This Court notes that after promulgation of that statute, the Florida Supreme Court did not modify Rule 1.280(b)(4)(a)(i) to allow production of such reports and payment records which the Legislature has mandated that doctors maintain.
7. The promulgation of the Rules of Civil Procedure are within the authority of the Florida Supreme Court not the Florida Legislature. The Florida Supreme Court, through the Rules of Civil Procedure determines the scope of what can be discovered in a lawsuit. While the Legislature’s pronouncement in §627.736, Fla.Stat. requires that doctors must maintain certain records may be significant for physician disciplinary action if a doctor does not maintain the records, it has no relevance to the appropriate scope of discovery which is defined by the Rules of Civil Procedure.
Based upon the foregoing, it is Ordered and Adjudged that the Motion to Quash Subpoena Duces Tecum by and the same is hereby Granted and ¶¶2, 3, 4, and 5 of the Subpoena Duces Tecum served by Plaintiff by the Records Custodian of David B. Goldberg, M.D. be and the same is hereby Quashed.
