17 Fla. L. Weekly Supp. 337a
Online Reference: FLWSUPP 1705ASHInsurance — Personal injury protection — Discovery — Medical records of nonparties — Order compelling insurer’s medical expert to appear for deposition with copies of all expert reports issued in previous three years, limited to his ultimate conclusions, is quashed in absence of finding of unusual and compelling circumstances
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. HALLANDALE BEACH ORTHOPEDICS, INC., a/a/o Pauline Ash, Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE 09-010420 (04). Re COCE 08-07234 (49). February 18, 2010. Counsel: Lara J. Edelstein, Miami. Cris E. Boyar, Margate. Dean A. Mitchell, Ocala.
ORDER GRANTING WRIT OF CERTIORARI
(O’Connor, Judge.) The Petitioner seeks an order quashing a discovery order of the trial court entered on February 18, 2009. That order compels the Petitioner’s medical expert to appear for a deposition with copies of all expert reports he issued in the previous three years, limited to his ultimate conclusions.
This Court agrees that, in the interest of fairness and justice, the Respondent should be entitled to the aforementioned discovery, with all identifying information on the reports redacted. 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.
So that juries have adequate information to properly evaluate the reasonableness, necessity, and relatedness of the services claimed, the plaintiffs in PIP cases should be able to prove way the “IME” industry works. Juries should be able to evaluate how 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 percentage of work or income a physician receives from doing examinations and/or reports for a particular insurance company or law firm can be 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.
Despite the above, this Court is constrained to grant the writ and quash the order under review, based on 1). Elkins;2). Graham v. Dacheikh2, which shows that the subjects of IME reports are entitled to privacy in the medical reports created3; and 3). the express discovery limitations of Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii), without findings of “unusual or compelling circumstances,” which are currently controlling on the Court.
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).
3This Court fails to see how identity-redacted medical records actually invade such privacy interests.
