22 Fla. L. Weekly Supp. 933a
Online Reference: FLWSUPP 2208RIFFInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness — Discovery — Documents and information relating to provider’s reimbursement contracts and amounts provider has agreed to accept and has accepted for the CPT codes at issue in instant case
DENNIS M. KURYLIW, D.C., A PROFESSIONAL ASSOCIATION, a Florida Corporation (assignee of Riffle, Ona), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pasco County. Case No. 51-2012-SC-2218-WS, Division W. October 24, 2014. Frank I. Grey, Judge. Counsel: Russel Lazega, Florida Advocates, for Plaintiff. Diane Cassie Bermudez, Andrews & Manno, PA, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION TO COMPELBETTER RESPONSES TO REQUEST TO PRODUCE,MOTION TO COMPEL BETTER RESPONSES TODEFENDANT’S SECOND REQUEST TO PRODUCE,AND MOTION TO COMPEL BETTER ANDVERIFIED ANSWERS TO INTERROGATORIES
THIS CAUSE coming on to be heard before the Court on Defendant’s Motion to Compel Better Responses to Request to Produce, Motion to Compel Better Responses to Defendant’s Second Request to Produce, and Motion to Compel Better and Verified Answers to Interrogatories, and the Court having reviewed the file and relevant legal authority, having heard the argument of counsel, and being otherwise fully advised in the premises, finds as follows:
Defendant propounded discovery upon Plaintiff, to include Interrogatories, Request to Produce, and a Second Request to Produce, seeking documents and information relating to Plaintiff’s reimbursement contracts and the amounts Plaintiff has agreed to accept and has accepted for the same CPT code(s) at issue. In response, Plaintiff raised various objections. Thereafter, Defendant filed its Motion to Compel Better Responses to Request to Produce Numbers 1, 3, 5, 8, 9, 11, 14, 15 and 17; Motion to Compel Better Responses to Second Request to Produce, and Better and Verified Answers to Interrogatories Numbers 8, 9, 10, 12 and 17. At the outset of the hearing, which took place on June 24, 2014, Defendant withdrew its Motion as to Request to Produce Numbers 8 and 17.
CONCLUSIONS OF LAW
Plaintiff has the burden of establishing that the medical services at issue are reasonable. See Allstate Ins. Co. v. Derius, 773 So.2d 1190 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2730a]. Pursuant to Florida Statute 627.736, an insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular service or if the service is not necessary.
Fla. Stat. 627.736(5)(a)(1) defines a “reasonable” charge as follows:
In 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 if [1] usual and customary charges and payments accepted by the provider involved in the dispute, and [2] reimbursement levels in the community and [3] various federal and state medical fee schedules applicable to automobile and other insurance coverage’s, and [4] other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
“What a provider customarily charges or has previously accepted are important factors for determining whether a fee is reasonable”. Allstate Insurance Company v. Holy Cross Hospital, Inc., 961 So. 2d 328, 335 (Fla. 2007) [32 Fla. L. Weekly S453a]. The PIP statute measures the “reasonableness” of a charge based in large part upon evidence of amounts charged and accepted by the provider involved in the dispute.
The Fourth District, in Columbia Hosp. (Palm Beaches) Ltd. P’ship v. Hasson, 33 So. 3d 148 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D551a], also found that what a provider accepts for the same services is relevant and discoverable in a case where the reasonableness of the provider’s charges was at issue. In Columbia Hosp., the defendants sought discovery from the hospital concerning particular procedures including the amount the hospital has charged patients with and without insurance, those with letters of protection, and differences in billing for litigation patients versus non-litigation patients. Id. At 150. The Fourth District noted that [as in PIP cases] a claimant for damages for bodily injuries has the burden of providing the reasonableness of his or her medical expenses. Id.
The Second District, in Giacalone v. Helen Ellis Mem’l Hosp. Found., 8 So. 3d 1232 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D881b], found that the charges and discounts granted to the various categories of patients (e.g., self-pay patients, Medicare patients, Medicaid patients, charity care patients, and privately insured patients) was not only relevant, but critical to dispute the reasonableness of the charges. In Giacalone, the Plaintiff sought discovery to include the charges and discounts granted to various categories of patients that the hospital serves and to the hospital’s internal cost structure. The Hospital objected to producing most of the documents requested, and declined to respond to several of the interrogatories, arguing that the information constituted trade secrets. A Motion to Compel Discovery followed. The Second District found that Mr. Giacalone had been prevented from developing two of the three kinds of relevant evidence: (1) the discovery of the Hospital’s charges and the discounts that it grants to the various categories of patients it serves and (2) the Hospital’s internal cost structure. The Court concluded that, “Proof of [a claim of unreasonable pricing] may also involve inquiry concerning the usual and customary rates the Hospital charges and receives for its services and concerning the Hospital’s internal cost structure, in addition to a comparative analysis of the relevant market.” Id. See also Colomar v. Mercy Hospital, Inc., 461 F. Supp. 2d 1265 (S.D. Fla. 2006) (Differential pricing might establish that certain charges are unreasonable). See also, State Farm Mutual Automobile Insurance Company v. Shands Jacksonville Medical Center, Inc., Case No. 16-2012-CA-011452-XXXX (Fla. Duval Cir. Ct. April 11, 2014) (J. Waddell A. Wallace) (In personal injury protection cases where the reasonableness of the provider’s charges were at issue, State Farm sought discovery of the provider’s objections.)
The parties in these cases raise similar issues and arguments. The discovery sought by State Farm in these cases, is similar to that sought by the Defendants in Columbia Hospital and the Petitioner in Giacalone and Shands and Plaintiff has raised the similar objections. Based on the above, this court agrees with the Defendant that the requested discovery of the medical provider’s negotiated insurance and reimbursement contracts, and reimbursement data is necessary to dispute the reasonableness of the provider’s charges.
Therefore for the reasons stated, the Court ORDERS as follows:
1. Defendant’s Motion to Compel Better Responses to Defendant’s Request to Produce as to request numbers 1, 5 and 9, where Plaintiff stated no objection to those requests and indicated that it believed that it had provided documents in response, but those documents were never received by Defendant, is hereby GRANTED. Plaintiff shall produce all documents and records responsive to those requests within 20 calendar days of the date of this Order.
2. Defendant’s Motion to Compel Better Responses to Defendant’s Second Request to Produce is hereby GRANTED. Plaintiff shall produce all documents and records responsive to that request within 20 calendar days of the date of this Order.
3. Defendant’s Motion to Compel Better and Verified Answers to Interrogatories as to question numbers 9 and 17, where Plaintiff stated no objection to those questions, but instead referred Defendant to documents that had never been provided, is hereby GRANTED. Plaintiff shall provide complete and verified answers to those interrogatories within 20 calendar days of the date of this Order.
4. Defendant’s Motion to Compel Better and Verified Answers to Interrogatories as to question numbers 8, 10, and 12 is hereby GRANTED. Plaintiff shall provide complete and verified answers to those interrogatories within 45 days of the date of this Order.
5. Defendant’s Motion to Compel Better Responses to Defendant’s Request to Produce as to request numbers 3, 11, 14 and 15 is hereby GRANTED. Plaintiff shall produce all documents and records responsive to those requests within 45 calendar days of the date of this Order.
6. Within 45 days of the date of this Order, Plaintiff shall provide Defendants with a copy of the medical billing report for each CPT code at issue in this case from March 4, 2008 through February 21, 2009. Said report shall include the following details:
a. Procedure code performed
b. Date of service
c. Amount billed
d. Amount(s) paid
e. Date of payment(s)
f. Method of payment
7. Within 45 days of the date of this order, Plaintiff shall provide Defendants with complete copies of each of Dennis Kuryliw, D.C., P.A.’s contracts or agreements (including any fee schedules) in affect at any point from March 4, 2008 through February 21, 2009, relating to payment for medical services for the CPT codes (The above includes contracts/agreements with any automobile insurer, federal agency, State agency, disability insurer, health maintenance organization “HMO”, preferred provider organization “PPO”, exclusive provider organization, and any other commercial payor with which Dennis Kuryliw, D.C., P.A. has contracted concerning reimbursement for MRI services in the state of Florida). Plaintiff may redact reimbursement rates for CPT codes not at issue in this suit.
8. Plaintiff may redact any individual patient name or other information which would identify any patient for which personal/individual privacy is a concern. This provision applies to both interrogatory answers and production of documents/records.
9. To avoid disclosure of any trade secret or proprietary information, Plaintiff may simply identify the insurance provider or carrier as, HMO #1____; HMO #2____, PPO #1, etc.
10. Protection of said documentation is subject to the execution of a mutually agreed confidentiality agreement.
11. Defendant seeks an award of attorney’s fees and costs. Recovery of such fees are governed by Section 627.736(6)(2) Fla. Stat. The award of such fees and costs is discretionary with the court as justice requires. Plaintiff has demonstrated substantial justification for Plaintiff’s objection to Defendant’s Discover Request, and therefore does not warrant an order compelling to pay Defendant’s attorney’s fees and costs.
12. If Plaintiff determines that the cost involved in producing said documents is significant, Plaintiff may file an affidavit with court attesting to such cost and requesting reimbursement for same.
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