16 Fla. L. Weekly Supp. 201a

Online Reference: FLWSUPP 162JOSEP

Insurance — Personal injury protection — Discovery — Physician-patient privilege — Medical records received by insurer from other medical providers for claim are not protected by physician-patient privilege where plaintiff medical provider is entitled to records through assignment of benefits — Further, assignment at issue includes specific authorization for provider to receive medical records — Work product privilege — Where descriptions of claim file, adjuster notes and investigation material in amended privilege log are not specific enough to determine whether documents are privileged, any work product privilege is waived — Claims files, adjuster notes and investigation material created prior to date of demand letter are not protected by work product or attorney-client privileges

THE FAMILY PRACTICE, INC. (Michel Joseph, Patient), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-018096COCE(50). December 17, 2008. Peter B. Skolnik, Judge. Counsel: Cindy A. Goldstein, Cindy A. Goldstein, P.A., Coral Springs. Matthew Watkins and Christopher Kirwan, Kirwan & Spellacy, P.A., Fort Lauderdale.

ORDER ON PLAINTIFF’S MOTION TO STRIKE PRIVILEGE LOG AND COMPEL PRODUCTION OF DOCUMENTS

THIS CAUSE having come before this Honorable Court on Plaintiff’s Motion to Strike Privilege Log and Compel Production of Documents, and based on argument of counsel and the Court being advised in the premise, it is hereby;

ORDERED AND ADJUDGED as follows:

1. That this is an action for unpaid Personal Injury Protection (“PIP”) Benefits.

2. Plaintiff propounded Plaintiff’s First Request For Production of Documents with the Complaint which was served on August 31, 2007.

3. On February 5, 2008, Defendant finally served its Response to Request to Produce, objecting to numerous items as protected by work-product privilege and that the medical records received from all medical providers for this claim were protected by patient-physician privilege. Defendant failed to file a privilege log.

4. Plaintiff subsequently filed its Motion to Compel Better Responses to Request to Produce. In response, Defendant finally served its Privilege Log on June 14, 2008, listing the following items as protected by privilege: claim notes, adjuster notes, investigation materials; ISO claim search; bills/records from other medical providers, and checks payable thereto; suit documents involving the Department of Health.

5. Plaintiff served its Motion to Strike Privilege Log and to Compel Production of Documents on September 29, 2008, arguing that Florida Rule of Civil Procedure 1.280(b)(5) requires that when a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. The specific explanation of why the document is privileged or immune from discovery must be sufficiently detailed to allow the court to determine whether the discovery opponent has discharged its burden of establishing the requirements necessary for the assertion of the privilege. TIG Insurance Corporation of America v. Johnson and Auto-Owner’s Insurance Company D/B/A Home Owners Insurance Company, 779 So.2d 339 (Fla. 4th DCA 2001). The court in TIG specifically stated, “Accordingly, descriptions such as ‘letter re claim’, ‘analysis of claim’, or ‘report in anticipation of litigation’ — with which we have grown all too familiar — will be insufficient”. Id. Plaintiff further argued that many items on the privilege log were not in fact protected by work-product privilege.

6. In response to Plaintiff’s Motion to Strike Privilege Log and Compel Production of Documents, Defendant served its Amended Privilege Log on August 13, 2008, asserting that the claim file, adjuster notes, and investigation materials are protected by work product and attorney-client privilege (“41 pages of various dates. All notes were printed for and provided to Defense Counsel on November 5, 2007”). Defendant cited the following cases for its proposition: Allstate Indemnity Company v. Ruiz, 780 So.2d 239, 240 (Fla. 4th DCA 2001), National Security Fire v. Dunn, 705 So.2d 605 (Fla. 5th DCA 1997); American States Ins. Co. v. Kranco, 641 So.2d 175 (Fla. 5th DCA 1994); Smith v. Fortune Ins. Co., 5 Fla. L. Weekly Supp. 783a (17th Judicial Circuit, Broward County, 1998); Miami Resorts Inc. d/b/a Executive Airport v. Calderon, 780 So. 2d 346 (Fla. 3rd DCA 2001); Intercontinental Properties v. Samy, 685 So. 2d 1035 (Fla. 3rd DCA 1997); Federal Express Co. et al. v. Cantaway, 778 So. 2d 1052 (Fla. 4th DCA 2001); 1620 Health Partners v. Fluitt, 830 So.2d 935 (Fla. 4th DCA 2002).¹ Defendant’s Amended Privilege Log also asserted that the medical records received from other medical providers for this claim were protected by physician-patient privilege.

7. This Court finds that the medical records sought by the Plaintiff are not protected by physician-patient privilege. First, Plaintiff is entitled to these records through an assignment of benefits; Plaintiff stands in the shoes of the assignor. Moreover, albeit unnecessary, this particular assignment of benefits specifically provides for a medical authorization for the Plaintiff to receive the records.

8. This Court additionally finds that the items described in the Amended Privilege Log pertaining to the claim file, adjuster notes, and investigation materials are not specific enough to ascertain whether the documents are in fact privileged. TIG Insurance Corporation of America v. Johnson and Auto-Owner’s Insurance Company D/B/A Home Owners Insurance Company, 779 So.2d 339 (Fla. 4th DCA 2001). Defendant was given three (3) opportunities to provide a sufficient privilege log but failed to do so. The privilege log does not describe the title of the note, who prepared the notes, the exact date it was generated, and to whom the document was forwarded to. Any work-product privilege is therefore waived. Omega v. Templeton, 805 So.2d 1058 (Fla. 4th DCA 2002).

9. Specifically, this Court finds that claims file, adjuster notes, and investigative materials are not protected by work-product or any other privilege. The work product privilege attaches to statements and materials prepared by a party’s investigator and insurer only if these were prepared in contemplation of litigation. Mere likelihood of litigation does not satisfy this qualification. Cotton States Mutual Insurance Company v. Turtle Reef Associates, Inc., 444 So.2d 595 (Fla. 4th DCA 1984).

10. Plaintiff is entitled to all adjuster notes that existed up to the point where the adversarial process begins. Elizabeth Charles-Henry v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 139 a (Orange Cty. Ct. 2001). See also Edge Family Chiropractic, P.A. (a/a/o Rachel Crossley) v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 151a (Escambia Cty. Ct. 2004); David A. Napoli, D.C. d/b/a Napoli Chiropractic Center (a/a/o Reynaldo Raudales) v. Granada Insurance Company, 12 Fla. L. Weekly Supp. 501a (Broward Cty. Ct. 2005); Dr. Steven Brown (a/a/o Jerome Johnson) v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 634c (Broward Cty. Ct. 2002); Royal Palm Beach Medical, Inc. (a/a/o Opal Gayle) v. Allstate Insurance Company, 12 Fla. L. Weekly Supp. 1094a (Palm Beach Cty. Ct. 2005); Orlando Pain & Medical Rehabilitation Centers, MW, LLC (Pagadnjad Altansuvd-Gambat) v. Nationwide Mutual Insurance Company, 14 Fla. L. Weekly Supp. 107a.

11. This Court finds that the date of the demand letter, to wit, July 6, 2007, triggers the adversarial relationship and production would not violate attorney-client privilege where these documents were prepared prior to demand letter and prior to date insurer was represented by counsel, and insurer could not anticipate that it would be sued at that time. Orlando Pain & Medical Rehabilitation Centers, MW, LLC (Pagadnjad Altansuvd-Gambat) v. Nationwide Mutual Insurance Company, 14 Fla. L. Weekly Supp. 107a.

12. Plaintiff’s Motion is granted. Defendant is to provide the entire claim file, adjuster notes, and investigation materials created prior to July 6, 2007, and all medical records for this patient, to the Plaintiff on or before December 19, 2008.

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¹This Court agrees with Plaintiff’s counsel that the cases cited by Defendant are irrelevant to the instant case as they deal with bad-faith cases, nursing home abuse, or do not stand for the proposition Defendant asserts they stand for. Defendant’s cite of the case of Allstate v. Ruiz, 780 So.2d 239 (Fla. 4th DCA 2001) as supporting Defendant’s assertion of privilege is a misrepresentation to this Court as this case was quashed by the Florida Supreme Court in a 25 page opinion dated April 7, 2005 [30 Fla. L. Weekly S219c], and the insurance company was required to produce the subject documents. Allstate Indemnity Company v. Ruiz, 899 So.2d 1121 (Fla. 2005).