19 Fla. L. Weekly Supp. 294a
Online Reference: FLWSUPP 1904CUEVInsurance — Personal injury protection — Discovery — Interrogatories — Insurer’s motion for more complete answers to interrogatories demanding information regarding services rendered to insured by other medical providers, composition of provider’s practice, and reimbursement sources and litigation over past three years is denied — Request for information on amounts accepted for CPT codes at issue is limited to payments received from Medicare in previous three months — Motion to require production of pleadings, trial and deposition transcripts, documentation evidencing that charges are in accordance with various guidelines, and contracts with any private health insurance entities is denied — Request for advertising materials is limited to three months
HEALTH DIAGNOSTICS OF FORT LAUDERDALE, LLC f/k/a DAMADIAN MRI IN POMPANO BEACH, P.A. d/b/a Stand-up MRI of Fort Lauderdale, a/a/o Lastenia Cuevas, Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE0912293. December 8, 2011. Von Tefs, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Scott Dutton, Dutton Law Group, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FORMORE SUFFICIENT ANSWERS TOINTERROGATORIES AND REQUEST TO PRODUCE
THIS CAUSE having come before the Court on Defendant’s Motion for More Sufficient Answers to Interrogatories and Request to Produce and the Court having reviewed the entire court file, having heard argument from counsel, and having been otherwise fully advised in the premises, it is hereupon ORDERED AND ADJUDGED as follows:
1. This is a small claims case that arises out of a claim for unpaid personal injury protection benefits in the amount of $443.92.
2. The date of loss was February 14, 2008, and this case involves one date of service on April 05, 2008.
3. This case is controlled by the 2008 PIP Statute.
4. Plaintiff billed $1,600.00 for an MRI, which represents the usual and customary amount that Plaintiff typically charges for the services rendered in this case.
5. At the time that the statutory demand letter was sent the Medicare fee schedule issue was not yet resolved; therefore, to avoid litigation, the Plaintiff chose to demand 200% of the Medicare Part B fee schedule minus the applicable 20% reduction.
6. For CPT Code 72141, Plaintiff made a demand as follows:
AMOUNT 80% PAID BALANCE DUE
$1,131.58 $905.26 $704.971 $200.29
7. For CPT Code 72148, Plaintiff made a demand as follows:
AMOUNT 80% PAID BALANCE DUE
$1,175.06 $940.05 $696.422 $243.63
8. Despite the recent decisions in Kingsway Amigo Ins. Co. v. Ocean Health Inc., No. 4D10-4887 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] and Nationwide Mut. Fire Ins. Co. v. AFO Imaging, Inc., No. 2D10-929 and 2D10-2274 (Fla. 2nd DCA 2011) [36 Fla. L. Weekly D1463b], which are binding on this Court, and which have resolved the issue of the applicability of a fee schedule and any limitation based on OPPS in favor of the Plaintiff, Defendant nevertheless maintains its position that it correctly paid the bills at issue in this case.
9. Furthermore, despite the fact that the amount sued for in this case was already reduced by the Plaintiff to 80% of 200% of the Medicare fee schedule minus the amount already paid by the Defendant, Defendant, under these circumstances, maintains an unusual and novel position that the bills demanded were unreasonable.
10. When looking at the totality of the factual and legal circumstances in this case as set forth above, this Court finds as follows:
11. Defendant’s motion as it relates to Plaintiff’s response to interrogatory #8, which is set forth below, is denied.
8. Provide a complete list of all benefits or charges which have been paid to or on behalf of the Defendant’s insured/Plaintiffs assignor for the accident giving rise to this claim for PIP or medical payments benefits, specifying the nature of the services rendered, the provider of the services, the amount of the charges, the date the charges were incurred, the date the charges were submitted for payment and to whom, the date the charges were paid and by whom.
ANSWER:
Unknown as to any other provider.
12. Defendant’s motion as it relates to Plaintiff’s response to interrogatory #17, which is set forth below, is granted in part and denied in part. The interrogatory is limited strictly to Medicare and only for the previous three (3) months.
17. Over the past three years has your office accepted different amounts (such as for cash paying patients, Medicare, Medicaid, HMOs, PPOs, or other health insurers or other similar insurance contracts) for the CPT codes for the services involved in the dates of service at issue in this case? If so, please set forth the names and addresses of the entities from whom you accepted amounts different you claim are due in this case:
ANSWER:
Objection, unduly burdensome. The Plaintiff does not maintain information pursuant to each file which designates whether a final payment for services was the result of pre-litigation billing, pre-litigation demand, negotiations pre-litigation, post-litigation settlement in lieu of continued prosecution of the claim or by virtue of judgment. Each of these circumstances may effect the final amount accepted from each Defendant and may be an amount different from the amount presently claimed. As such, the Plaintiff is not able to readily compile the requested information as it would require the Plaintiff to go through each file for each claimant ever seen by the Plaintiff and make a determination based upon all the documents contained in each file as to basis for the final amount accepted in each case. In addition, many of the final amounts accepted do not follow the same facts as presented in the instant case and therefore the irrelevant information sought would exceed the scope of permissible discovery under Florida Rule of Civil Procedure 1.280(b)(1).
13. Defendant’s motion as it relates to Plaintiff’s response to interrogatory #19, which is set forth below, is denied.
19. Please state to the best of your ability the percentage of patients in your practice who receive your services as a result of injuries sustained in or relating to a personal injury claim or auto accident
ANSWER:
Objection, unduly burdensome. The Plaintiff does not maintain its files in a manner to readily ascertain the underlying basis upon which the patients are seen. All patients are seen for the purposes of obtaining an MRI at the request of a prescribing physician. Information regarding the source of injury is requested in an intake form, but the patient files are not organized according to the information on the intake form but are assigned an account number unrelated to the cause of injury. In order for the Plaintiff to make an determination as requested, the Plaintiff would have to go back through every one of its file in order to track the source of injury which would take hundreds of man hours to accomplish. In addition, the Plaintiff objects as the information requested is not capable to leading to the discovery of admissible evidence.
14. Defendant’s motion as it relates to Plaintiff’s response to interrogatory #20, which is set forth below, is denied.
20. Please state to the best of your ability the percentage of patients in your practice who receive your services as a result of injuries not sustained in or relating to a personal injury claim or auto accident.
ANSWER:
Objection, unduly burdensome. The Plaintiff does not maintain its files in a manner to readily ascertain the underlying basis upon which the patients are seen. All patients are seen for the purposes of obtaining an MRI at the request of a prescribing physician. Information regarding the source of injury is requested in an intake form, but the patient files are not organized according to the information on the intake form but are assigned an account number unrelated to the cause of injury. In order for the Plaintiff to make an determination as requested, the Plaintiff would have to go back through every one of its file in order to track the source of injury which would take hundreds of man hours to accomplish. In addition, the Plaintiff objects as the information requested is not capable to leading to the discovery of admissible evidence.
15. Defendant’s motion as it relates to Plaintiff’s response to interrogatory #21, which is set forth below, is denied.
21. For the past 3 years, please state to the best of your ability the percentage of patients in your practice from whom you receive reimbursement pursuant to:
HMO contracts
PPO contracts
Private health insurance contracts between the Plaintiff and any and all health insurers
Medicare patients
Medicaid patients
Workers Compensation
PIP insurance
ANSWER:
Objection. The purpose of discovery is to clarify issues in a case as framed by the pleadings. This is a action to recover personal injury protection benefits under the Florida no fault statute. The percentage of patients in our practice from whom you receive reimbursement pursuant to HMO contracts, PPO contracts, Private health insurance contracts between the Plaintiff and any and all health insurers, Medicare patients, Medicaid patients, Workers Compensation and PIP insurance information is irrelevant and not reasonably anticipated to lead to the discovery of admissible evidence.
16. Defendant’s motion as it relates to Plaintiff’s response to interrogatory #22, which is set forth below, is denied.
22. Over the past three (3) years, please state to the best of your ability the percentage of the patients in your practice who pay you for the services received via cash or via methods other than insurance listed in interrogatory #21.
ANSWER:
Objection, The Plaintiff utilizes a billing company for the collection of fees charged does not maintain its files in a manner to readily ascertain the utilized form of payment. All patients are seen for the purposes of obtaining an MRI at the request of a prescribing physician and are assigned an account number unrelated to the form of payment. In order for the Plaintiff to make an determination as requested, the Plaintiff would have to go back through every one of its file in order to track the source of payment which would take hundreds of man hours to accomplish. In addition, the Plaintiff objects as the information requested is not capable to leading to the discovery of admissible evidence.
17. Defendant’s motion as it relates to Plaintiff’s response to interrogatory #23, which is set forth below, is denied.
23. Please state whether or not, during the past three years (3), you have ever been involved in any other litigation involving the same CPT codes and charges that are at issue in this case. If so, please set forth the name of the case, the jurisdiction where the case was pending, the case number (you may, in the alternative, simply attach a copy of the pleadings relating to those claims) and the names and addresses of the attorneys involved for both the Plaintiff and the Defendant:
ANSWER:
Objection, vague, overbroad, harassing and not capable to leading to the discovery of admissible evidence. Defendants request is overbroad as Plaintiff may have been involved in litigation over the past three years regarding the same CPT codes and charges but the defenses plead and issues to be determined may not be similar or related to the defenses plead and issues to be determined in this case. Any cases dealing with unrelated issues and affirmative defenses would not be permissible discovery under the rules of Civil Procedure. Plaintiff would have to search the through all litigation files for the last three years and determine if the issues are in fact similar. Further more, all cases in litigation or litigated are readily available to the Defendant as they are contained in the public record. Defendant is equally as capable as the Plaintiff to pull the requested cases in order to obtain the information requested. The Plaintiff therefore asserts that it should not have to bear the labor and financial burden to produce responses which are equally accessible by the Defendant. In addition, the Plaintiff objects as the information requested is not capable to leading to the discovery of admissible evidence.
18. Defendant’s motion as it relates to Plaintiff’s response to request for production #15, which is set forth below, is denied.
5. A copy of any and all pleadings and discovery from any cases or claims in which you have been a party over the past three (3) years involving your charges.
ANSWER:
With regard to Request No. 5, Plaintiff objects. Defendant’s request is over-broad in that it does not specify which cases being sought but simply refers to “any and all pleadings and discovery from any cases or claims” in which the Plaintiff has been involved in the last three years regarding charges. Plaintiff would first assert that all of the requested information is contained within the public record and is readily available to to Defendant should the Defendant so choose to put forth the hundreds of man hours and thousands of dollars in copying expenses it would take to produce the requested documents. Moreover, while Defendant has requested all cases or claims related to charges, all cases and claims related to charges do not involve the same issues, defenses, or services provided. All pleading and discovery from distinguishable cases or claims would exceed the scope of Florida Rule of Civil Procedure 1.280(b)(1) and would not be permissible discovery. Lastly, the Plaintiff does not maintain the requested documents in a manner which would permit their ready retrieval and production. As already stated, to produce these documents, if same are even available, would require hundreds of man hours and thousands of dollars of expense.
19. Defendant’s motion as it relates to Plaintiff’s response to request for production #6, which is set forth below, is denied.
6. Any and all deposition or trial transcripts of any and all providers, office managers, billing managers, officers, owners, directors, employees, or independent contractors regarding any depositions or trials that they have testified in, within the last five (5) years.
ANSWER:
With regard to Request No. 6, Plaintiff objects. The Plaintiff does not possess the deposition and trial transcripts regarding all cases in which said statements have been taken. Only in the event that the Plaintiff is called to trial does the Plaintiff even order deposition transcripts and even then, orders only those transcripts which may be useful at trial. Only in the even that an issue at trial is appealable, does the Plaintiff order a copy of the trial transcript. As such many of the transcripts requested have never been physically generated and are therefore not within the possession of the Plaintiff. In addition, Defendant’s request is overbroad in that it does not specify any particular type of case or claim or related issue that the deposition or trial may have addressed, but instead call for “any and all deposition or trial transcripts”. All deposition or trial transcripts that may have been physically generated may not pertain to the same issues, defenses, or charges as the instant case. Any production of cases that go beyond the issues, defenses and charges addressed in this case exceed the permissible scope of discovery as outlined in Florida Rule of Civil Procedure 1.280(b)(1). Moreover, the Plaintiff does not maintain the requested documents in a manner which would permit their ready retrieval and production. To produce these voluminous documents, many exceeding 30 pages per transcript, if same are even available, would require hundreds of man hours and thousands of dollars of expense in order to pull and copy.
20. Defendant’s motion as it relates to Plaintiff’s response to request for production #18, which is set forth below, is denied.
18. Any and all documentation that you have evidencing that your charges are in accordance with Medicare Part B, First Coast fee schedules, Medicaid, UCR (“Usual, Customary and Reasonable”) Guidelines from any source, in accord with any insurance company “guidelines” or allowance, any recommendations by peer reviews, consultants, similar providers or other such personnel, including any hand written notes memorializing said recommendations regarding billing, any HIAA (Health Insurance Association of America) Guidelines.
ANSWER:
With regard to Request No. 18, the pricing allowed for the provision of services at issue are statutorily designated. The prices provided to the Defendant per the bills already produced serve as documentation that the Plaintiff’s charges are in accordance with applicable law.
21. Defendant’s motion as it relates to Plaintiff’s response to request for production #37, which is set forth below, is denied.
37. The contracts and fee schedules with any HMOs, PPOs or any other private health insurance entities to which you have submitted patient medical bills that was in effect in for the past three (3) years.
ANSWER:
With regard to Request No. 37, Objection. Any agreements with other insurance companies is not related to the pending action. Plaintiff is within its rights to contract and agree with other parties as it relates to charges submitted in exchanged for uncontested payment.
22. Defendant’s motion as it relates to Plaintiff’s response to request for production #42, which is set forth below, is granted in part and denied in part. This request for production is limited to the last three (3) months.
42. Any and all advertising literature, marketing material, television videos, infomercials, commercials, magazine/newspaper advertisements, brochures or other advertising/marketing/public relations materials disseminated by Plaintiff within the last five (5) years.
ANSWER:
With regard to Request No. 42, Objection. Plaintiff is not obligated to maintain or produce the unrelated requested advertising materials it may have utilized. Many of theses documents are not even maintained by the Plaintiff and are either completely dissemination or purged from the Plaintiff’s records. In addition, this claim specifically deals with the payment of charges for services rendered and Defendant has not asserted any grounds which would make marketing a relevant issue to this case. Therefore any such requests exceeds the scope of permissible discovery under Florida Rule of Civil Procedure 1.280 (b)(1).
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1Paid pursuant to the Medicare fee schedule and limited under the outpatient perspective payment system.
2Paid pursuant to the Medicare fee schedule and limited under the outpatient perspective payment system.
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