16 Fla. L. Weekly Supp. 233a
Online Reference: FLWSUPP 163MITCH
Insurance — Personal injury protection — Discovery — Medical records of nonparties — Insurer’s expert witness should not be required to produce reports of all independent medical examinations and peer reviews performed in past three years — Even if production is required, trial court departed from essential requirements of law by requiring production without notice to non-party personal injury patients
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. ADVANCED CHIROPRACTIC & MEDICAL CENTER CORP., a/a/o Elsie Mitchell, Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-49507 (26). February 4, 2009. Counsel: Lara Edelstein, Office of the General Counsel, United Automobile Insurance Co., Miami. R.J. Bradford, Jr., Law Office of R.J. Bradford, P.C., Johnson City, TN.
[Editor’s note: Lower court order published at 15 Fla. L. Weekly Supp. 1127b]
OPINION
(CHARLES M. GREENE, J.) THIS CAUSE came before the Court on Petition for Writ of Certiorari filed by Petitioner United Automobile Insurance Company. The Court having considered same, having reviewed the applicable law and being otherwise duly advised in premises, finds and decides as follows:
In the underlying matter, Respondent (Plaintiff below) filed a complaint to recover personal injury protection (PIP) benefits pursuant to an assignment from Elsie Mitchell. Petitioner (Defendant below) filed its affirmative defenses asserting that the medical bills were not reasonable, related or necessary based on the opinion of Dr. Joseph Marfisi, who served as Petitioner’s independent medical doctor. Respondent served a subpoena duces tecum upon a non-party and Petitioner’s expert opinion witness, Dr. Marfisi. The subpoena duces tecum requested copies of all IME’s and Peer Review that Dr. Marfisi has performed for Petitioner in the past three (3) years; copies of all IME’s and Peer Reviews that Dr. Marfisi performed for all other insurance carriers in the last three years; and copies of all IME’s and Peer Review’s that Dr. Marfisi has performed pursuant to Florida Statute 627.736(7) in the past three (3) years. Respondent subsequently filed a motion to compel Dr. Marfisi to provide the requested documents. On August 22, 2008, the trial court held a hearing and granted the motion to compel. This Petition follows.
When a petition for writ of certiorari is before the court, it must 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 an appellate 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).
Respondent, Plaintiff below, sought the records of the examining physician pursuant to §627.736(7)(a), Fla. Stat. Section 627.736(7)(a) provides in pertinent part that:
The physician preparing a report at the request of an insurer and physicians rendering expert opinions on behalf of persons claiming medical benefits for personal injury protection, or on behalf of an insured through an attorney or another entity, 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.
Petitioner argues that the fact that §627.736(7)(a)requires that a physician maintain copies of all examination reports and records of all payments does not require the expert physician to produce the same or make them available for inspection. Respondent, in turn, argues that it would be quite useless for the legislature to consider and pass an amendment requiring PIP expert witnesses to maintain all PIP reports and payments histories and then expect the court to hold that the reports are undiscoverable.
When the legislature amended §627.736(7)(a) in 2003, it did so based on a legislative finding that some insurers had pressured or directed IME doctors to change reports favorable to the insureds. See Final Report of Select Committee on Automobile/P.I.P. reform, S. 40-5, 5th Sess., at 3 (2003). The next sentence subsection (7)(a) specifically provides that “[n]either an insurer nor any person acting at the direction of or on behalf of an insurer may materially change an opinion in a report prepared under this paragraph or direct the physician preparing the report to change such opinion.” Therefore, the purpose of the amendment was not to accommodate discovery requests for the purpose of impeaching the expert witness but to improve IME reporting. As such, this Court does not believe that an examining physician should be required to produce these records.
However, even if this Court were to find that §627.736(7)(a) does require an examining physician to produce the IME reports and payment records for the last three years, this Court would still be required to find that the order departed from the essential requirements of the law pursuant to the holding of Graham v. Dacheikh, 991 So.2d 932 (Fla. 2d DCA 2008). In Graham, an automobile negligence action, a medical examination was performed on one of the plaintiffs
pursuant to Fla. R. Civ. P. 1.360. The plaintiffs sought extensive discovery from the examining physician including a printout of any and all depositions done by the physician for the calendar years 2004, 2005, and 2006; a list of cases wherein the examining physician testified at trial for that period and the person or entity who requested his presence at trial; and a copy of any written report the examining physician wrote as a result of a compulsory medical examination pursuant to Fla. Rule of Civ P. 1.360 for those calendar years. The trial court compelled the examining physician to disclose reports from prior examinations of personal injury plaintiffs without notice to such nonparties and without adequate protection of their privacy rights. The Second District looked to Fla. Stat. §456.057(7), which provides medical records may be furnished:
In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.
The Second District Court of Appeal held that §456.057(7), Fla. Stat., required proper notice to the patient even if the identifying information was redacted. In quashing the discovery order, the Second District found that the trial court departed from an essential requirement of the law by compelling discovery of medical records belonging to nonparties who did not receive notice of the disclosure.
Similarly, in the instant case, Respondent is seeking from Dr. Marfisi, extensive medical records for the past three years for nonparties who did not receive notice of the disclosure.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED. The trial court’s discovery order is quashed.
