17 Fla. L. Weekly Supp. 1123c
Online Reference: FLWSUPP 1711HOLNInsurance — Personal injury protection — Discovery — Expert witness — Production of third party vendor’s records of amounts paid by vendor to insurer’s expert for conducting independent medical examinations for insurance companies in general is outside scope of permissible discovery where records will not show extent of financial relationship between expert and individual insurer — Medical records of nonparties — Peer reviews conducted by expert on nonparties may not be disclosed without notice to nonparties — Exception allowing disclosure of medical records for statistical and scientific research is not applicable
DORSAL REHABILITATION, INC., (a/a/o Delroy Holness), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-07145 COCE 56. June 25, 2010. Linda R. Pratt, Judge. Counsel: Joseph R. Dawson, for Plaintiff. Orlando Ortiz, for Defendant.
ORDER ON OBJECTIONS TO SUBPOENA DUCES TECUM
THIS CASE is before the Court on Defendant United Automobile Insurance Company’s objections to a subpoena duces tecum issued by Plaintiff to Certified Medical Consultants, Inc., a non party. The subpoena seeks the following documents:
Copies of 1099’s and W-2 forms generated by Certified Medical Consultants, Inc., for services performed by Dr. Glenn Siege] for conducting IME exams or peer reviews for the years 2006 through 2010, and fifty (50) sequential peer review reports issued by Dr. Siegel with names redacted commencing July 7, 2007.
Defendant claims the requests are overbroad, irrelevant and harassing, and outside the scope of that discovery permissible under Fla. R. Civ. Pro. 1.280. Plaintiff contends that the record of payments to Dr. Siegel for work he performs for insurance companies generally is relevant to show his bias, and such information is discoverable pursuant to Allstate Insurance Company v. Boecher, 733 So. 2d 993 (Fla. 1999).
In Boecher the Florida Supreme Court held that litigants are entitled to know the extent of a party’s relationship with an expert and the financial renumeration paid by the party to the expert over a period of time. The documents sought by Plaintiff will not disclose how much Defendant United Automobile Insurance Company pays Dr. Siegel or how much money he makes testifying for United Automobile Insurance Company because United Automobile Insurance Company doesn’t directly hire IME or peer review doctors as a rule, but uses a third party vendor. Thus the W-2s and I 099s will only show how much money Dr. Siegel makes from insurance companies generally. This is the same information which Plaintiff is precluded from obtaining from the expert directly. Elkins v. Syken, 672 So. 2d 517 (Fla. 1996).
Plaintiff, nevertheless, argues that it is entitled to this information because the jury is entitled to know the extent of a party’s financial relationship with its expert. While the Court agrees with that statement of law, the records sought by Plaintiff simply will not answer that question. Therefore, the Court agrees with Defendant that the production of the expert’s 1099’s and W-2’s are outside the scope of what is permitted by Rule 1.280 Fla. R. Civ. Pro., and that the Boecher case is inapplicable.
Defendant also objects to the subpoena of fifty (50) sequential peer review reports prepared by Dr. Siegel with names redacted, and relies on Graham v. Dacheikh, 991 So. 2d 932 (Fla. 2 DCA 2008), as well as numerous 17th Circuit opinions which rely on Graham to quash orders of the County Courts requiring the production of IMEs and Peer reviews. What differentiates this case is that Plaintiff is seeking only peer reviews, not reports of medical examinations, which were the subject of the ruling in Graham. While the peer reviews themselves may not be medical records, they reference patient records and patient personal information, and thus appear to fall within the scope of the prohibition of FS 456.057 (7)(a) against disclosure without notice to the patient or patient’s legal representative.1
Plaintiff suggests that there is an exception which allows disclosure of records without patient authorization for “statistical and scientific research” pursuant to F.S. 456.057(7)(a)(4). However, the Court finds that exception to be inapplicable where Plaintiff’s purpose is not to further the interests of science, but to impeach a witness.
Therefore, Defendant’s objections to the subpoena duces tecum to Certified Medical Consultant’s, Inc., is sustained.
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1F.S. 456.057(7)(a) provides that “Except as otherwise provided in this section and F.S. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative — .
