22 Fla. L. Weekly Supp. 740a
Online Reference: FLWSUPP 2206TMORInsurance — Personal injury protection — Discovery — Depositions — HMO and PPO contracts between medical provider and other insurers are confidential and proprietary information, and neither contracts nor testimony about their contents is discoverable
GABLES MRA, INC., (a/a/o Teresa Morales), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 11-11687 SP 25 (01). August 10, 2012. Gloria Gonzalez-Meyer, Judge. Counsel: Kenneth B. Schurr; and Marlene S. Reiss, Marlene S. Reiss, P.A., Miami, for Plaintiff. Oliver Wragg, for Defendant.
ORDER SUSTAINING PLAINTIFF’S OBJECTIONSTO DISCOVERY OF HMO/PPO CONTRACTS
THIS CAUSE came before the Court on July 31, 2012, on Plaintiff’s objections to discovery regarding its HMO and PPO contracts, following the deposition of the Plaintiff’s principle, Robert Diaz. The Court, having reviewed the Memorandum of Law filed by the Plaintiff, having reviewed all pertinent documents, and having heard argument of counsel, sustains the Plaintiff’s objection. Accordingly, it is hereby
ORDERED AND ADJUDGED:
that the Plaintiff’s objections are hereby SUSTAINED.
Plaintiff GABLES MRA INC., is the assignee of United’s insured Teresa Morales. In connection with the lawsuit filed by Gables to collect PIP benefits for payment of a February 9, 2011, MRI performed on Ms. Morales, United Auto deposed Robert Diaz, Gables’s owner, on February 2, 2012.
During the deposition, in connection with United’s questioning about “pricing,” United’s counsel asked whether Gables participates in PPO and HMO networks. The Plaintiff objected on grounds that the information requested is proprietary. Over objection, the witness answered that Gables MRA does accept PPO and HMO rates from participants in those contracts. The questioning continued with regard to specific rates that Gables accepts for certain treatments under those contracts and Plaintiff’s counsel objected again.
The witness was instructed not to answer further questions regarding the specifics of those contracts. It appears that United has also requested production of those contracts, to which Gables has objected on the same grounds.
Gables argues that HMO and PPO contracts are not relevant to a determination of charges that a PIP insurer is obligated to pay, and that such contractual information between Gables and other insurers is proprietary or otherwise confidential. United argues that it is entitled to this information to garner evidence of “payments accepted” by Gables. See §627.736(5)(a), Fla.Stat.
The Court reviews, and both parties rely upon, the language of Fla. Stats. §627.736(5)(a), which governs medical provider charges. Specifically, the Court looks to the following language within that provision:
(a) 1. . . . 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, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment or supply.
Fla.Stats. §627.736(5)(a)1. (emphasis added).
The Court notes that §627.736(5)(a) makes no mention of PPO or HMO contract rates between the medical provider “in this dispute” and other insurers.1 In this regard, Gables argues the doctrine of“expressio unius est exclusio alterius” or “the inclusion of one thing implies the exclusion of another.”
Both parties rely on Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328 (Fla. 2007) [32 Fla. L. Weekly S453a], which demonstrates that PPO contracts between insurers and medical providers allows for an increase in medical benefits to be paid, from 80% to 100%, and for reduction or waiver of the standard PIP deductibles in certain circumstances. See Fla.Stats. §627.736(9). Additionally, the PPO arrangement provides the medical with a pool of patients that it otherwise might never reach.
The parties have differing interpretations of Holy Cross.
In Holy Cross, Allstate paid 80% of a reduced PPO rate to Holy Cross Hospital for care provided to two of Allstate’s insureds. That payment was predicated on separate contracts that Holy Cross and Allstate each had with a provider network, Beech Street Corporation. Holy Cross argues that, because neither of its patients had PPO policies with Allstate, and because Allstate had not contracted directly with any provider, Allstate could not take advantage of the PPO reduced rates, and instead was required to pay 80% of “reasonable” charges. The court acknowledged “the existence of enforceable contracts by which Holy Cross agreed to accept PPO rates from Allstate for any of its insureds that received treatment covered by their PIP policies.” 961 So.2d at 332, n.2.
The issue before the Court in Holy Cross was whether Allstate could pay the reduced rate based upon the PPO contracts notwithstanding that it had not complied the PIP Statute’s PPO provision (the statute requires a PIP insurer to offer a nonpreferred provider policy if it offers a preferred provider policy to an insured). Because Allstate had contracted with Beech Street, aprovider network, with which Holy Cross had also contracted, the Court determined that Allstate could pay the reduced PPO rate even though it had not issued PPO policies to its insureds. The contractual relationship between and amongst the parties in Holy Cross is key to the Court’s decision.
The circumstances of this case are different. Here, United has not entered into a PPO contract with Gables MRA, nor is any third party provider network involved with which any of the parties may have contracted. This is simply a case in which United seeks to avail itself of the reduced PPO rates under contracts between Gables and other insurers to which United is not a party. Nothing prevented United from directly entering into a PPO contract with Gables if it desired to avail itself of reduced PPO rates.
Accordingly, the Court rejects United’s interpretation of Holy Cross and finds that, where there is no PPO contract between United and Gables MRA, any PPO or HMO contracts that Gables MRA may have with other insurers are not relevant to the determination of what price United must pay for Gables MRA’s services in this case.
With respect to Gables’s argument that its PPO contracts with other insurers are proprietary or otherwise confidential, the Court finds persuasive the language Holmes Regional Med. Center v. ACHA, 731 So.2d 51 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D810a], which dealt with a discovery ruling regarding deposition testimony given by a hospital’s expert witness regarding the hospital’s managed care contracts. The court determined that “proprietary” information (i.e., details of the managed care arrangements) voluntarily disclosed at a deposition waived any privilege of proprietary or otherwise confidential information. Since the Court in Holy Cross specifically compared PPO contracts to managed care options,2 the Court finds that Holmes sufficiently suggests that PPO contracts are proprietary, giving rise to a claim of privilege. See §90.506.
Even if that were not the case, the Court relies on black letter law which protects the confidential contents of a contract from disclosure to a non-party to thecontract.
Accordingly, the Court SUSTAINS Plaintiff’s objections to discovery of its PPO or HMO contracts with insurers other than United Auto. Neither the PPO and HMO contracts themselves, nor testimony of the substance therein are discoverable by United Auto.
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1The Court notes that, in 1992, the PIP Statute was amended to allow insurers to enter into PPO contracts with medical providers, currently numbered as §627.736(9).
2“PPO policies are in essence a managed care option to insurance,” in which insurers encourage policyholders to choose a “preferred” provider through economic incentives such as no copayments, lower deductibles, and higher coverage, providing a pool of patients to the preferred provider. Holy Cross, supra at 336, n.5.
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