17 Fla. L. Weekly Supp. 169b
Online Reference: FLWSUPP 1703COOPInsurance — Personal injury protection — Discovery — Medical records of nonparties — Order compelling insurer’s medical expert to produce redacted independent medical examination reports issued in previous three years is quashed where there was no finding of unusual or compelling circumstances as required by rule 1.280(b)(4)(A)(iii), and order would require disclosure of medical records of nonparties who did not receive notice of disclosure
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. ADVANCED CHIROPRACTIC & MEDICAL CENTER, INC., a/a/o Lillian Cooper, Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case Nos. 08-50151 (09) and 08-3209 COCE (52). December 17, 2009. Counsel: Lara J. Edelstein, Miami. Roberts J. Bradford, Jr., Johnson City. Kathy Eikosidekas, Ft, Lauderdale.
ORDER GRANTING WRIT OF CERTIORARI
(KRATHEN, J.)The Petitioner seeks an order quashing a discovery order of the trial court. The order in question compels the Petitioner’s medical expert to provide redacted copies of IME reports he issued in the previous three years. The order allowed the doctor to redact identity and personal information, but required the conclusions and dates to be available.
This Court agrees that, in the interest of fairness and justice, the Respondent should be entitled to the aforementioned discovery. Claimants — and the medical providers to whom they assign their PIP benefits — should be able to obtain the redacted reports showing the conclusions and recommendations of the medical examiners, which the insurers use to support their rejection or discontinuation of services. PIP plaintiffs need such documents to prove the actual bias, if it exists, that only those records would show. The accessibility of such proof to claimants would help to ensure fair and honest treatment of all claimants, which is in the public interest of all of the citizens of Florida.
The plaintiffs in PIP cases should be able to prove to their juries the way the “IME” industry works, so that the juries have adequate information to properly evaluate the reasonableness, necessity, and relatedness of the services claimed. The juries should be able to evaluate how the decisions to reject the claims in question were made, and the credibility and “independence” of the examining physicians.
The concern in Elkins1 for the ability to obtain experts should be considered inapplicable to the IME PIP claims industry. With the advent of IME scheduling companies, the amount of money or percentage of income a physician has receives from doing examinations and/.or reports for a particular insurance company or law firm is deceptive. Such companies use multiple physicians and practices to schedule reviews and/or examinations for multiple insurance companies. As a result, a physician may be financially dependent on providing reports favorable to one or more scheduling companies which are, ultimately, financially dependent on providing favorable reports to multiple insurance companies. The generalized information allowable under Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii) is insufficient to show the reality of the current PIP system. Further, the volume of business which insurers regularly provide should ensure that the companies have no problem in obtaining experts willing to provide copies of their conclusions and recommendations to the insurers, if the insurers make said copies a condition of the physicians’ retention to provide the examinations or reports.
Having said all of the above, this Court is constrained to grant the writ and quash the order under review, based on Elkins; the express discovery limitations of Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii), without findings of “unusual or compelling circumstances”; and the concerns about revealing private medical information of non-parties, without prior notice, expressed in Graham v. Dacheikh,2 which is currently controlling on the Court, although this Court fails to see how identity-redacted medical records actually invade such privacy interests.
Accordingly, it is
ORDERED AND ADJUDGED that the petition is GRANTED, the writ issued, and the order under review is hereby QUASHED.
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1Elkins v. Syken, 672 So.2d 517 (Fla. 1996).
2Graham v. Dacheikh, 991 So.2d 932 (Fla. 2d DCA 2008).
