22 Fla. L. Weekly Supp. 737a
Online Reference: FLWSUPP 2206JRODInsurance — Personal injury protection — Discovery — Depositions — Scope of inquiry regarding reimbursement levels in community and documents to be produced at deposition of insurer’s corporate representative
APPLE MEDICAL CENTER, LLC, A FLORIDA CORPORATION (A/A/O RODRIGUEZ, JUAN 5), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-17033 SP 23 (01). October 15, 2014. Myriam Lehr, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff.
ORDER ON DEFENDANT’S EMERGENCY MOTION OBJECTING TO PLAINTIFF’S NOTICE OF TAKING FLA.R.CIV.P. 1.310(B)(6) DEPOSITION OF DEFENDANT’S CORPORATE REPRESENTATIVE
THIS CAUSE having come before the Court on October 15, 2014 upon the emergency motion of the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (“STATE FARM”), objecting to Plaintiff’s Second Notice of Taking Fla.R.Civ.P. 1.310(b)(6) Deposition of the designated corporate representative of STATE FARM, and the Court having considered the motion and objections, having heard argument of counsel and being otherwise fully advised, it is hereupon
ORDERED that STATE FARM’s motion is DENIED and STATE FARM’S objections are OVERRULED, as more fully set forth below:
1. This is a PIP case in which the Plaintiff APPLE MEDICAL CENTER , LLC, A FLORIDA CORPORATION (a/a/o Rodriguez, Juan 5) (“APPLE MEDICAL”) is seeking payment from STATE FARM for an August 6, 2009 orthopedic consultation performed by David G. Lehrman, M.D. for patient Juan Rodriguez. APPLE MEDICAL charged $600.00 for the CPT procedure code 99244 orthopedic consultation. STATE FARM approved $403.22 of the $600.00 charge, based upon STATE FARM’s utilization of 200% of the Participating Level of Medicare Part B fee schedule for the region in which the services were rendered.
2. APPLE MEDICAL asserts that STATE FARM did not pay 80% of APPLE MEDICAL’s reasonable charge in the amount of $600.00 charge.
3. On November 19, 2013, APPLE MEDICAL served its initial Notice of Fla.R.Civ.P. 1.310(b)(6) deposition of STATE FARM’s designated corporate representative, scheduling the deposition to take place 5 months later, on April 10, 2014. The initial deposition notice contained “Designated Topics” showing that APPLE MEDICAL intended to inquire regarding STATE FARM’s determination to pay APPLE MEDICAL’s claim at a reduced rate, as well as the methodology, basis, facts and calculations used by STATE FARM to determine the reasonableness and payment of the charges at issue, and reimbursement levels in the community. The initial deposition notice also contained a Duces Tecum regarding documents evidencing reimbursement levels in the community.
4. On April 7, 2014, 3 days prior to the scheduled deposition, STATE FARM filed its Motion for Protective Order, objecting to designated topic no. 5 of the deposition notice (reimbursement levels in the community) as vague, overbroad, harassing, unduly burdensome, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. STATE FARM failed to appear for the duly noticed April 10, 2014 1.310(b)(6) deposition.
5. By Orders dated August 8, 2014 and August 18, 2014, this Court denied STATE FARM’s motion for protective order, ordering the 1.310(b)(6) deposition of STATE FARM’s designated corporate representative to be coordinated within 30 days and to take place within 90 days, and awarding sanctions against STATE FARM as a result of its failure to appear for the duly noticed April 10, 2014 1.310(b)(6) deposition of STATE FARM’s designated corporate representative.
6. On September 11, 2014, APPLE MEDICAL served its second Notice of Fla.R.Civ.P. 1.310(b)(6) deposition of STATE FARM’s designated corporate representative, scheduling the deposition to take place on October 27, 2014.
7. On October 7, 2014, STATE FARM served its “Objections to Plaintiff’s Notice of Taking Deposition Duces Tecum.” Notwithstanding this Court’s having previously denied STATE FARM’s Motion for Protective Order as to the April 10, 2014 corporate representative deposition, award of sanctions for failure to appear at that deposition and compelling a new corporate representative deposition to go forward within 90 days of August 8, 2014, STATE FARM objected to the new Notice of Taking Deposition Duces as “overbroad, irrelevant, immaterial, unduly burdensome and work product and/or attorney-client privileged.”
8. On October 14, 2014, STATE FARM served its “Emergency Motion Objecting to Plaintiff’s Notice of Taking Deposition Duces Tecum.”
9. Pursuant to Florida’s no fault statute, with respect to a determination of whether a charge for a particular service, treatment or otherwise is reasonable, consideration may be given to reimbursement levels in the community and other information relevant to the reasonableness of the reimbursement for the service, treatment or supply. Sec. 627. 736(5)(a) (1), Fla. Stat.
10. As this Court has previously ruled, APPLE MEDICAL shall be entitled to conduct the deposition of STATE FARM’ s designated corporate representative on October 27, 2014 and conduct inquiry regarding reimbursement levels in the community where the services were performed, as reflected by
a. the amounts which orthopedic physicians in Miami-Dade County, Florida have charged STATE FARM for performing CPT Code 99244, the same CPT code that is at issue in this case (the “Relevant CPT Code Procedure”), for procedures performed during the period of time from December 1, 2007 through December 31, 2007 and from July 7, 2009 through September 6, 2009;
b. the amounts which STATE FARM has allowed as reasonable, approved or authorized charges for orthopedic physicians in Miami-Dade County, Florida who have billed STATE FARM for the Relevant CPT Code Procedure, for procedures performed during the period of time from December 1, 2007 through December 31, 2007 and from July 7, 2009 through September 6, 2009; and
c. the amounts which STATE FARM has paid orthopedic physicians in Miami-Dade County, Florida who have billed STATE FARM for the Relevant CPT Code Procedure, for procedures performed during the period of time from December 1, 2007 through December 31, 2007 and from July 7, 2009 through September 6, 2009.
11. STATE FARM shall bring the entire PIP claim file to the deposition. STATE FARM shall not waive any privilege by referring to any materials that are part of the PIP claim file in answering any questions at deposition. Any materials that are not produced under a claim of privilege shall be identified in an appropriate privilege log.
12. In lieu of producing Explanations of Review, STATE FARM shall produce at the deposition a report using Decision Point Software or similar software, reflecting the following information:
a. identification of orthopedic physicians located within the Community of Miami-Dade County, who have performed the Relevant CPT Code Procedure during the period of time from December 1, 2007 through December 31, 2007 and from July 7, 2009 through September 6, 2009, and who have billed STATE FARM for those procedures;
b. the amounts charged by orthopedic physicians within the Community of Miami-Dade County, Florida, for performing the Relevant CPT Code Procedure during the period of time from December 1, 2007 through December 31, 2007 and from July 7, 2009 through September 6, 2009;
c. the amounts allowed by STATE FARM as reasonable, approved or authorized charges for the Relevant CPT Code Procedure performed by orthopedic physicians within the Community of Miami-Dade County, Florida, performed during the period of time from December 1, 2007 through December 31, 2007 and from July 7, 2009 through September 6, 2009; and
d. the amounts paid by STATE FARM to orthopedic physicians located within the Community of Miami-Dade County, Florida for the Relevant CPT Code Procedures, performed during the period of time from December 1, 2007 through December 31, 2007 and from July 7, 2009 through September 6, 2009.
13. FURTHER ORDERED as follows:
Duces tecum #11 is withdrawn. State Farm need not produce the underwriting file or application for insurance if coverage is not an issue.
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