16 Fla. L. Weekly Supp. 1138b
Online Reference: FLWSUPP 1612CACE
Insurance — Personal injury protection — Discovery — Independent medical examinations and peer reviews — Error to compel insurer’s medical expert to disclose IMEs and peer reviews prepared at request of insurer for past three years
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. JENNY P. CACERES, D.C., P.A., a/a/o Arturo Larralde, Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 09-08312 CACE (07). L.T. Case No. 06-13326 COCE (52). October 12, 2009.
OPINION
(ROBERT A. ROSENBERG, J.) THIS CAUSE is before the Court on Petition for Writ of Certiorari filed by Petitioner, United Automobile Insurance Company seeking to quash an order of the trial court requiring the Insurer’s medical expert to “produce the IME and peer review for the last 3 years prior to the date of this order” with all the personal information redacted, but the date of the exam and the conclusions included. The court having reviewed the petition, the Respondent’s Response, and having review the record and being duly advised on the premise, decides as follows:
On August 25, 2006, Respondent (Plaintiff below) filed a complaint seeking to recover Personal Injury Protection (PIP) benefits pursuant to an assignment to benefits from Arturo Larralde. In it Answer and Affirmative Defense, the Petitioner (Defendant below) denied that the medical bills were reasonable, related, and necessary after June 9, 2009 based upon a cutoff date established by an Independent Medical Examination (“IME”) performed by Dr. Dennis Kogut, D.C. Respondent served a subpoena duces tecum without deposition on Dr. Kogut requesting copies of all medical records, review reports, and addendums maintained as required by Florida Statute Section 627.736(7)(a), prepared at the request of the United Automobile Insurance Company in the past three (3) years, with names, and any other personal information, of the patients/insureds redacted to protect patient confidentiality.
Dr. Kogut served his Response and Objection to the request on November 19, 2008. A hearing was held on January 12, 2009 as a result of which the trial court entered an order requiring the Petitioner’s medical expert to produce the IME and peer review for the last 3 years prior to the date of the trial court’s order with the personal information redacted; but the date of the exam and the conclusions included. 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 sought the records of the examining physician pursuant to §627.736(7)(a), Fla. Stat., which requires physicians to maintain, for at least 3 years, copies of all examination reports. Petitioner argues that the 627.736(7)(a) does not require the production of the records maintained in accordance with the statute.
The facts and arguments as similar to those setforth in United Automobile Insurance Company v. Jenny P. Caceres, D.C., P.A.,09-16680 CACE (11) (Fla. 17th Cir. Ct. September 23, 2009) . This Court finds aforementioned case persuasive, and adopts the reasoning of the court in that action.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Petition of Writ of Certiorari is GRANTED. The trial court’s discovery order is quashed.
