21 Fla. L. Weekly Supp. 675a
Online Reference: FLWSUPP 2107CISNInsurance — Personal injury protection — Discovery — Medical provider must produce computer-generated procedure report that includes amounts provider billed and accepted for all payors for CPT codes at issue
NEUROLOGY PARTNERS, P.A. D/B/A EMAS SPINE & BRAIN, as assignee for IMELDA CISNERO, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2013-SC-002068, Division CC-L. April 21, 2014. Michelle Kalil, Judge.
ORDER GRANTING DEFENDANT’S MOTIONTO COMPEL BETTER RESPONSES
THIS CAUSE came before the Court at the April 2, 2014 hearing on Defendant’s Motion to Compel Better Responses to Defendant’s Discovery, and it appearing that good and sufficient grounds have been shown for granting the Motion, and the Court being otherwise fully advised in the premises, it is Ordered and Adjudged as follows:
1. Plaintiff brought this Personal Injury Protection (“PIP”) action against Defendant on May 6, 2013 for purportedly underpaid PIP benefits for dates of service 4/1/10 through 8/12/10. The sum at issue is approximately $201.84.
2. On or about November 27, 2013, Defendant propounded to Plaintiff its first Request to Produce and Interrogatories.
3. On or about December 17, 2013, Plaintiff filed a Motion to Extend Time in Which to Respond to Defendant’s Request for Production and Defendant’s Interrogatories.
4. On or about December 26, 2013, counsel for both parties entered into an agreed order for Plaintiff to respond to Defendant’s discovery within forty-five (45) days from December 18, 2013.
5. On or about February 13, 2014, Plaintiff provided responses to Defendant’s Request to Produce and Interrogatories.
6. On or about February 13, 2014, and pursuant to Local Rule 88-2, counsel for Defendant sent a good faith letter to counsel for Plaintiff advising of the insufficiency of Plaintiff’s responses. Counsel for Defendant advised that Plaintiff failed to verify its interrogatory responses and provided boilerplate objections to many of its requests on reasonableness of the charge. Defendant requested Plaintiff contact Defendant to respond by February 17, 2014 or to request an additional extension for Plaintiff to provide better responses. Plaintiff did not contact Defendant within this time frame, causing Defendant to file a Motion to Compel Better Responses on February 18, 2014.
7. According to Rule 1.340(a), Fla. R. Civ. P., “(e)ach interrogatory shall be answered . . . in writing under oath.” Plaintiff did not verify its responses, so Plaintiff has violated this rule. Plaintiff is ordered to verify its responses. Further, this Court considers Plaintiff’s responses insufficient, evasive, vague, and non-responsive.
8. Plaintiff did not produce any documentation evidencing reasonableness of the charge in response to Defendant’s Request to Produce, and in fact, provided blanket objections for many of its responses. Defendant sought reasonableness of the charge information to use as evidence of the usual and customary payments accepted by the provider, which is permitted by the Florida Statutes, which states, in pertinent part:
“F.S. § 627.736 (5) Charges for treatment of injured persons.
(a) 1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and the insured only a reasonable amount . . . [i]n no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute . . .”.
9. The interrogatories and the documents requested were propounded by Defendant to obtain evidence on the reasonableness of Plaintiff’s charge and the amount of payment Plaintiff believes to be reasonable for a certain service. Plaintiff’s assertion that Defendant’s payment is unreasonable — the very reason for bringing this lawsuit — is without merit unless Plaintiff can provide supporting documentation to prove what amount is reasonable. For additional support, the information requested by Defendant is frequently permitted by Florida Courts. Beaches Open MRI of Jacksonville (a/a/o Coreen Morehouse) v. State Farm Mutual Auto. Ins. Co., 20 Fla. L. Weekly Supp. 665a (Duval Cty. Ct. Jan. 23, 2013)(finding that “[w]here provider has burden to prove that care rendered and amount charged were reasonable, related and necessary, information regarding amounts provider receives from other entities, billing procedures, and setting of charges is discoverable”); Flagler Hospital, Inc. (a/a/o Mitchell Ball) v. MGA Ins. Co., 18 Fla. L. Weekly Supp. 610b (St. Johns Cty. Ct. Mar. 18, 2011)(compelling plaintiff produce to defendant reimbursement rates accepted from different payors for same or similar charges at issue in case); Hollywood Chiropractic & Acupuncture (a/a/o Jacqueline Burgos) v. UAIC, 20 Fla. L. Weekly Supp. 1095a (Broward Cty. Ct. Aug. 8, 2013)(ordering medical provider to provide better responses to discovery concerning payments accepted); Pembroke Pines MRI (a/a/o Elixardo Ramirez) v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp. 629a (Broward Cty. Ct. Mar. 18, 2013)(requiring plaintiff produced amounts reimbursed to plaintiff by HMO and PPO health insurance companies); Bigley & Associates, P.A. d/b/a Premier Orthopedics of Orlando (a/a/o Justin Pierre) v. Progressive Express Ins. Co., 15 Fla. L. Weekly Supp. 917a (Orange Cty. Ct. June 18, 2008)(objections to producing documents showing amounts paid to physician overruled).
10. Defendant requested Plaintiff produce a computer-generated procedure report from its billing software delineating every instance of amounts Plaintiff charged and accepted for the CPT codes at issue in this case. This Court determined at the hearing that the relevant time frame for the procedure report shall encompass the dates of service at issue, 4/1/10 through 8/12/10. Defendant argued that Explanations of Review would evidence the same information of amounts charged by Plaintiff and amounts accepted in payment by Plaintiff, but would only be useful if every Explanation of Review for the relevant time period were produced. If not, Plaintiff would have the option of picking and choosing the highest reimbursement amounts, which could alter the actual amount Plaintiff accepted from various payors and bias the statistics. Defendant further advised that a procedure report from Plaintiff’s computer billing software would be the most unbiased document to be produced as evidence of a reasonable charge, as it would account for amounts accepted in payment for every instance of billing for the CPT codes at issue. This Court agrees with Defendant.
11. At the hearing on April 2, 2014, counsel for Plaintiff argued that the information sought by Defendant is not relevant and is a fishing expedition. This Court finds that Section 627.736(5) is clear in that it allows Defendant to engage in the above-mentioned discovery to defend itself on the issue of reasonable charge. Further, Counsel for Plaintiff argued that it is prejudicial to Plaintiff for Defendant to argue reasonableness of the charge post-suit. Plaintiff argued that Defendant did not advise Plaintiff that it was contesting the reasonableness of Plaintiff’s charge until after the lawsuit ensued. This Court finds Plaintiff’s argument unpersuasive and in direct conflict with existing law. Section 627.736(4)(b), Florida Statutes (2010) states, in pertinent part:
“This paragraph does not preclude or limit the ability of the insurer to assert . . . that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.”
12. As there is no time limit under which Defendant may contest the reasonableness of Plaintiff’s charge, Defendant acted within its rights to assert such a defense after payment and post-suit.
13. Based on the above-cited case law and argument from both Counsel, this Court finds that Plaintiff must produce within forty-five (45) days from the date of this hearing a computer-generated procedure report, or other similar document, for the CPT codes at issue for dates of service 4/1/10 through 8/12/10. The document must include the amount Plaintiff billed and accepted from all payors, including, but not limited to, in and out-of-network health insurance companies; cash paying patients and/or their representatives; Medicare; Medicaid; Worker’s Compensation insurers; federal and state agencies; disability insurers; and any other party that paid Plaintiff, from 4/1/10 through 8/12/10 for the CPT codes at issue in this case.
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