21 Fla. L. Weekly Supp. 569b
Online Reference: FLWSUPP 2106RETTInsurance — Personal injury protection — Discovery — Amounts emergency services provider charged to and received from HMO/PPO insurer for CPT codes at issue are discoverable, notwithstanding insurer’s contention that reasonableness of charge is not at issue and only remaining issue is whether bill from emergency services provider can be applied to deductible under section 627.736(4)(c)
EMERGENCY MEDICINE PROFESSIONALS, P.A., a/a/o Jessica Rettinger, Plaintiff, vs. FIRST ACCEPTANCE INSURANCE COMPANY, INC., Defendant. County Court, 7th Judicial. Circuit in and for Volusia County, Civil Division. Case No. 2013-30524-COCI, Division 82. November 22, 2013. Christopher Kelly, Judge. Counsel: Robert D. Bartels, Orlando, for Plaintiff. James S. Gentry, Orlando, for Defendant.
Subsequent order in this case: FLWSUPP 2203RETT
ORDER
THIS MATTER came before the Court on October 21, 2013 on Defendant’s Motion to Compel Better Responses to Defendant’s Interrogatories and Request to Produce, and Plaintiff’s Motion for Protective Order, and this Court having heard arguments of counsel and being otherwise fully advised in the premises, finds as follows:FINDINGS OF FACT
1. The hearing was originally noticed not only for Defendant’s Motion to Compel Better Responses to Defendant’s Interrogatories and Request to Produce, and cross-noticed for Plaintiff’s Motion for Protective Order, but was also noticed for Defendant’s Motion to Compel Verified Answers to Interrogatories; and Defendant’s Motions for Sanctions, Motion to Dismiss and Motion for Civil Contempt.
2. However, the arguments at the hearing were limited solely to issues raised in Defendant’s Motion to Compel Better Responses to Defendant’s Interrogatories and Request to Produce, and the corresponding Plaintiff’s Motion for Protective Order, more specifically, whether the care provided by Plaintiff to the Insured was provided at a reasonable charge.
3. In relation to this issue, Defendant requests this court compel the Plaintiff to provide better responses to its requests related to the HMO/PPO Contracts in Interrogatories 16, 17, 21, 22, and 23; and Request to Produce 22 concerning the amounts charged to and received from various HMO/PPO insurers for identical services provided to patients by Plaintiff.
4. In opposition, the Plaintiff contends that the reasonableness of the charge is no longer at issue, and in addition to requesting the Court deny the Motion to Compel, also requests this Court to grant Plaintiff’s Motion for Protective Order relieving Plaintiff from the obligation to comply with this Court’s Order dated August 6, 2013 requiring Plaintiff to produce witnesses for deposition.
5. Plaintiff argues that the deposition of Defendant’s adjuster, Sheila Estes-Waugh, makes the material sought in Discovery irrelevant.
6. In pertinent part, Ms. Estes-Waugh testified at her deposition that:
a. She was the corporate representative from Defendant with the most knowledge of the claim and the affirmative defenses;
b. There was no dispute as to the reasonableness, relatedness, or medical necessity of the services provided to Defendant’s insured;
c. The Plaintiff’s charge was allowed in full, that there was no dispute to the charge, and that the only reason why the bill was denied was that it was applied to the deductible as one of the first bills received; and
d. If the bill was not applied to the deductible, then the bill would have been paid at 80% of the charged amount.
7. Plaintiff contends that, based on the testimony of Ms. Estes-Waugh, the discovery sought by Defendant is irrelevant because the only issue remaining before the Court is a legal issue as to whether a provider of emergency services and care can have its bill applied to the deductible, under Florida Statute §627.736(4)(c) which requires insurers to reserve payment for providers such as Plaintiff that timely submit their bills.
8. Defendant counters that, regardless of the testimony of Ms. Estes-Waugh, Plaintiff must prove by a preponderance of the evidence that the medical bills at issue were reasonable, necessary, and related to the patient/assignor’s automobile accident.
9. In further support, Defendant relies upon the errata sheet completed by Ms. Estes-Waugh upon reading her deposition.1
10. The errata sheet indicates in substance that a determination had not been made whether treatment was reasonable, necessary, and related, whether treatment was appropriately billed, and that the only issue which had been determined was that the bill at issue was to be applied to the deductible.CONCLUSIONS OF LAW
11. Fla. R. Civ. P. 1.280(b)(1) provides that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”
12. In a PIP claim, plaintiff carries the burden of proving the reasonableness of the medical bill by a preponderance of the evidence. Derius v. Allstate Indem. Ins. Co., 723 So. 2d 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a], rev. denied, 719 So.2d 892 (Fla. 1998).
13. While the Court is mindful that it has the power to limit discovery, in context, the Plaintiff is asking this Court to summarily dispose of the obligation of Plaintiff to prove reasonableness, which the Court declines to do.
14. The issue then becomes whether discoverable material on reasonableness includes HMO and PPO agreements.
15. The legislature has indicated that in determining whether a charge is reasonable, the parties and the court may look to (a) evidence of usual and customary charges by the provider involved in the dispute, (b) evidence of payments accepted by the provider involved in the dispute, (c) reimbursement levels in the community, (d) federal and state medical fee schedules applicable to automobiles, (e) federal and state fee schedules applicable to other insurance coverages, and (f) other information relevant to the determination of reasonableness. See § 627.736(5)(a)(1), Fla. Stat.
16. In Geico Gens. Ins. Co. v. Virtual Img. Sys, Inc., 38 Fla. L. Weekly S517a (Fla. 2013), the Florida Supreme Court stated that “[I]n determining whether a provider’s charge for a particular service is reasonable, “consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community,” as well as “various federal and state medical fee schedules” and “other information relevant to the reasonableness of the reimbursement.” § 627.736(5)(a) 1., Fla. Stat. In other words, pursuant to subsection (5)(a)1. of the PIP statute, reasonableness is a fact-dependent inquiry determined by consideration of various factors.”
17. In Flagler Hospital, Inc. a/a/o Mitchell R. Ball v. MGA Ins. Co., 18 Fla. L. Weekly Supp. 610b (7th Jud. Cir. St. Johns Cty. Mar. 18, 2011) (Tinlin, J.), the trial court expressly found that in an action for PIP benefits, copies of agreements between a provider, and HMOs, PPOs, and other private insurance in effect on the date of service at issue for the CPT codes at issue were discoverable.
18. Specifically, the Court stated:
The documents sought by the Defendant are discoverable as what a provider customarily has previously accepted for its medical services are important factors for determining whether a fee is reasonable. Allstate Ins. Co. v. Holy Cross Hospital, 961 So. 2d 328, 335 (Fla. 2007) [32 Fla. L. Weekly S453a]; Kerry Haskins MD. a/a/o Teres Kemp v. Progressive Consumers Ins. Co., 12 Fla. L. Weekly Supp. 880a (13th Jud, Cir. Ct. Hillsborough Cty. Jun. 6, 2005) (Myers, J.).
19. This Court agrees that in an action for PIP benefits, HMO/PPO contracts in effect on the date of service at issue for the CPT codes at issue are discoverable.
WHEREFORE, it is ORDERED AND ADJUDGED that:
1. The Defendant’s Motion to Compel Better Responses to Defendant’s Interrogatories and Request to Produce is GRANTED IN PART and the Plaintiff shall:
a. Provide better responses to Interrogatories 16, 17, 21, 22 and 23; and
b. Produce its HMO/PPO Contracts as requested in item 22 of the Request to Produce;
2. The Plaintiff’s Motion for Protective Order is DENIED; and
3. The Plaintiff shall have thirty (30) days from the date of the execution of this Order to comply with this Order;
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1Ms. Estes-Waugh originally waived reading at the time of the deposition. However, as noted at the end of the transcript, Ms. Estes-Waugh requested to read and sign.
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