21 Fla. L. Weekly Supp. 814a
Online Reference: FLWSUPP 2108VALEInsurance — Personal injury protection — Depositions — Documents — Scope of inquiry and documents and data to be produced by insurer are established — Insurer is not required to create data, but must compile summary of existing data
WEST BROWARD WELLNESS CENTER, (Sindia Valenzuela), Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 12-20364 (55). April 24, 2014. Sharon L. Zeller, Judge. Counsel: Kathy Eikosidekas, Marks & Fleischer, P.A., Fort Lauderdale, for Plaintiff. Marvin Comick, Roig, Tutan, Rosenberg, Martin & Stoller, Deerfield Beach, for Defendant.
ORDER ON APRIL 17, 2014 HEARING
THIS CAUSE having come on to be considered before the court on Defendant’s Objections to Duces Tecum, and the Court having been fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that:
The Defendant’s Objections are OVERRULED in Part and Plaintiff has Agreed to limit the scope in Part (areas of inquiry and documents to be produced) as reflected in this Order;
If any data does not exist, the Defendant is not required to create such data; To the extent the data does exist, the Defendant is however required to compile a summary; If the data does not exist at the time of deposition, the Defendant shall not be able to utilize any undisclosed data at the time of trial or in the defense of this case.
The Notice shall read as follows with respect to the Areas of Inquiry and the Documents to be Produced:
With regard to the Defendant’s Objections to the following Areas of Inquiry:
(1) The highest amount Defendant reimbursed any provider for the same CPT Codes at issue between January 1, 2007 and December 31, 2007.
(2) The content (or a summary of the range) of any data regarding the usual and customary charges and payments accepted by the Plaintiff and reimbursement levels for usual and customary charges in the community of providers of Plaintiff’ s type for the procedures performed by Plaintiff.
(3) Any data or data compilations relied upon by the Defendant in determining the “reasonable amount” for Plaintiff’s services in this case.
(4) All items utilized in determining the allowed amount of Plaintiff’s charges in this case. The method, including any calculations utilized in reducing the Plaintiff’s charges in this case to the allowed amount indicated any Explanations of Benefits/Explanations of Review.
(5) All items that were “considered” by the Defendant in determining the reasonableness of Plaintiff’s charges and how each of these items was utilized by the Defendant in calculating the reimbursement amount.
(6) The factual basis for each of the affirmative defenses raised by the Defendant.
(7) Whether the amount Plaintiff charged was “unreasonable” and the basis, including any underlying data, to support that determination including any and all information, data, or databases that Defendant relies upon (other than the Medicare Fee schedule and calculations contained in Fla. Stat. 627.736(5)(a)(2)(f) and (3)) to dispute that the amount charged by Plaintiff for the services at issue was not a “reasonable charge.”
(8) The range of charges for the CPT Codes at issue in this lawsuit submitted to the Defendant by any provider of chiropractic services in Broward County for the year in which Plaintiff provided the services at issue.
(9) The basis as to why the services were reimbursed by applying the 2007 Medicare Part B fee schedule at 200% for services not rendered in 2007.
(10) The most knowledge as to why the maximum reasonable amount allowed is identical to the amount contained in Fla. Stat. 627.736(5)(a)(2)(f), Fla. Stat. 627.736(5)(a)(3), Fla. Stat. 627.736(5)(a)(5).
(11) Regarding whether the Defendant is contesting the relatedness or medical necessity of the services provided.
With regard to the Defendant’s Objections to the following Documents to be Produced:
1. All insurance policies that would cover Sindia Valenzuela, together with the declaration of coverage page, all booklets and sworn statement of a corporate officer of Defendant attesting to the coverage and authenticity of the policy as required by Florida Statutes.
2. All correspondence sent to the insured with regard to the coverage under the policy.
3. Any documents relied upon by the Defendant in calculating the “allowable amount” by which Defendant reduced the Plaintiff’s charges as reflected in the itemized specification (Explanation of Reimbursement, Explanation of Benefits).
4. All data or data compilations relied upon by the Defendant in determining the “reasonable amount” for plaintiff’s services.
5. Any data or data compilations utilized or relied upon in this case that reflect the usual and customary charges and payments accepted by the Plaintiff provider for the CPT code service(s) at issue in this lawsuit for the year 2007, 2008 and 2009.
6. Any data or data compilations that reflects reimbursement levels in Broward for the services performed by the plaintiff, for the years 2007, 2008 and 2009, if relied upon in this case.
7. Any State or Federal medical fee schedules that were applicable to automobile and other insurance coverages (other than the schedule of limited reimbursement contained in Fla. Stat. 627.736 (5)(a)(2)(f)) for the CPT codes at issue in this case, if relied upon in this case.
8. Any and all information in the Defendant’s possession which the Defendant reviewed or upon which it relied in calculating the “reasonable amount” as defined in Fla. Stat. 627.736(5)(a)(1) for Plaintiff’s services other than the schedule of limited reimbursement contained in Fla. Stat. 627.736(5)(a)(2)(f).
9. The entire PIP file maintained by you or anyone on your behalf with regard to Sindia Valenzuela cover to cover, including original jackets and everything contained within the file, including, without limitation:*(Defendant shall bring all documents and shall testify from all documents but this will not be a waiver of privilege raised in Defendant’s privilege log)
(a) All adjusters log or diary1 notations regarding notice of the accident and notations relating to the handling and disposition of the claim.
(b) All records of conversations to or from you, or any of your agents on your behalf to anyone regarding any issues in this matter that have been raised by the complaint, motion to dismiss, summary judgment or affirmative defenses;
(c) Any notations by any Defendant’s employee or agent with respect to first report, notice of loss, and reflecting any conversations with the Plaintiff WEST BROWARD WELLNESS CENTER or its staff.
(d) All interoffice memos or notes that reflect any decisions regarding extending coverage of benefits for the date of loss at issue;
(e) All correspondence to or from anyone, including any insurance agencies, any doctors’ offices, any employers, any agencies hired to select doctors for “independent medical examinations” and any law enforcement agencies;
(f) Any and all PIP forms, including PIP applications, medical report forms, employer verification forms, authorization forms and any other forms contained in said file; and,
(g) All correspondence between Defendant and/or Sindia Valenzuela and/or his/her attorney or representative and/or the named insured under the policy including, if any, documents sent by regular mail, certified mail, and copies of the signed certifications to each addressee to whom the certified mail was sent.
(h) All medical records from any provider including all medical records from the treating physician who ordered any of the diagnostic services at issue,
(i) The PIP payout log reflecting the date bills or claims were received,
(j) Examination under oath transcripts, recorded statements of the insured, and any passengers;
(k) Any information supporting or related to the reduction of the amount charged by the plaintiff to the “allowed or allowable amount” reflected in the Explanation of Benefits/Explanation of Reimbursement/Itemized specification that accompanied the payment in this matter.
(l) Each and every bill submitted to the Defendant for medical services by anyone at any time from the date the PIP claim file in this case was first opened to the present directly from the PIP claim file so that the date each bill was received can be ascertained from the copy as well as copies of any and all envelopes in which such bills were submitted.
(m) All correspondence to and from any medical provider concerning submission for payment or documentation of any bill submitted for payment.
10. Any and all reservation of rights sent to the insured or the Plaintiff or other documentation in which the Defendant reserved the right to deny coverage or further payment notwithstanding the fact of prior payment, investigation, or adjustment of claims.
11. Any and all proof that Defendant relies upon (other than the Medicare Fee schedule and calculations contained in Fla. Stat. 627.736(5)(a)(2)(f) and (3)) to dispute that the amount charged by Plaintiff for the services at issue was not a “reasonable charge”.
12. Any and all reports or statements from any expert indicating that the treatment rendered by Plaintiff was not reasonable, related or necessary.
13. Any and all Peer Review reports, review of records reports, physical examination reports of any review of records or physical examination performed at the request of the Defendant.
14. Any and all statements taken by the Defendant of any witnesses with regard to any fact relevant to any fact in this case, such as was taken prior to the filing of suit in this matter.
15. A copy of the book OR A PRINTOUT OF THE SOFTWARE for each CPT Code service billed by the Plaintiff from which the Defendant has derived what it believes to be a reasonable charge, if utilized in this case.
16. A document that shows charges from a health care provider (under the same licensing chapter, in Broward, in 2009) that billed an amount at or below what Defendant contends is a reasonable charge for the same services in this case.
17. Please provide a copy of any CPT pricing data that Defendant submits to any fee analysis companies, limited to Broward County, CPT Codes at issue in this case and the year the Plaintiff provided services in this case.
18. Any and all reservation of rights or notifications of coverage issues or failures to comply with policy conditions sent to the insured or the Plaintiff or their attorneys.
19. Copies of any and all return receipts showing the receipt by Sindia Valenzuela of any requests to comply with policy conditions such as examinations under oath or attending physical examinations.
20. Copies of any and all return receipts showing the receipt by Sindia Valenzuela’s attorney of any requests to comply with policy conditions such as examinations under oath or attending physical examinations.
21. Copies of each and every document that supports, proves, or tends to support any of the affirmative defenses STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY asserts in the instant litigation.
22. Copies of each and every letter, communication, or correspondence in which STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY notified WEST BROWARD WELLNESS CENTER of its failure to comply with any statutorily or contractually imposed conditions precedent to payment or suit.
23. Copies of any and all responses by STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY to Plaintiff’s demand letter (Fla. Stat. 627.736(10)(2008)).
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1If same is recorded in a computer system or database then bring with you the most recent printout regardless of whether you contend the item is work product or not. If a work product objection is made the item can be identified for a ruling by the court.
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