22 Fla. L. Weekly Supp. 472a
Online Reference: FLWSUPP 2204JAIMInsurance — Personal injury protection — Discovery — Depositions — In deposition of insurer’s corporate representative, medical provider is entitled to inquire about method of determining reasonableness of payment of charges, reimbursement levels in community, and factual bases of defenses asserted by insurer — Insurer is required to produce claims materials and documents regarding calculation of reasonable payment and reimbursement levels in community
LAKE WORTH PHYSICAL MEDICINE D/B/A PALM BEACH PHYSICAL MEDICINE (A/A/O JAIMEZ, BIBIANA), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 2014-CC-4908 (RB). November 4, 2014. Ted S. Booras, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach. Adam Friedman, Kubicki Draper, Fort Lauderdale.
ORDER ON MOTIONS TO COMPEL DEPOSITIONSAND DEFENDANT’S MOTION FOR PROTECTIVE ORDERAND OBJECTIONS TO PLAINTIFF’S NOTICE OFTAKING RULE 1.310(B)(6) DEPOSITION OFDEFENDANT’S CORPORATE REPRESENTATIVE
THIS CAUSE having come before the Court on October 14, 2014 upon the motions of the Plaintiff LAKE WORTH PHYSICAL MEDICINE D/B/A PALM BEACH PHYSICAL MEDICINE (A/A/O JAIMEZ, BIBIANA) (“PALM BEACH PHYSICAL MEDICINE”) and the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (“STATE FARM”), to compel depositions, and STATE FARM’s motion for a protective order and objections to Plaintiff’s Notice of Taking Rule 1.310(b)(6) deposition of STATE FARM’s corporate representative, and the Court having been advised that the parties have agreed to the depositions to be conducted, having heard argument of counsel and being otherwise fully advised, it is hereupon
ORDERED as follows:
1. STATE FARM shall be entitled to conduct the deposition of the designated corporate representative of PALM BEACH PHYSICIAL MEDICINE, and PALM BEACH PHYSICAL MEDICINE shall be entitled to conduct the deposition of the designated corporate representative of STATE FARM. To the extent that the designated corporate representatives do not possess knowledge or information to respond to reasonable deposition questions regarding matters relevant or reasonably calculated to lead to the discovery of admissible evidence, the parties shall cooperate in providing such additional witnesses as may be reasonably necessary in order to answer such questions.
2. STATE FARM’s motion for protective order with regard to designated topic no. 4 of the deposition notice is DENIED and its objection OVERRULED. PALM BEACH PHYSICIAL MEDICINE shall be entitled to conduct the deposition of STATE FARM’s designated corporate representative and conduct inquiry regarding the methodology, basis, facts and calculations employed by STATE FARM to determine the reasonableness and payment of PALM BEACH PHYSICIAL MEDICINE’s charges at issue in this claim about which this lawsuit was filed.
3. STATE FARM’s motion for protective order with regard to designated topic no. 5 of the deposition notice is GRANTED in part and DENIED in part, and its objection SUSTAINED in part and OVERRULED in part. At the deposition of STATE FARM’s designated corporate representative, PALM BEACH PHYSICIAL MEDICINE shall be entitled to conduct inquiry regarding reimbursement levels in the community of Palm Beach County, Florida, where the services were performed, as reflected by
a. the amounts which chiropractors and chiropractic facilities in Palm Beach County, Florida have charged STATE FARM for performing CPT Codes 72040, 72100, 97010, 97012, 97140 59, 97530 59, 98940, 98941, 99204 2599213 25 and G0283 the same CPT codes that are at issue in this case (the “Relevant CPT Code Procedures”), for procedures performed during the period of time from January 5, 2013 (thirty (30) days prior to the first date of service in this case) through June 17, 2013 (thirty (30) days after the last date of service in this case);
b. the amounts which STATE FARM has allowed as reasonable, approved or authorized charges for chiropractors and chiropractic facilities in Palm Beach County, Florida who have billed STATE FARM for the Relevant CPT Code Procedures, for procedures performed during the period of time from January 5, 2013 through June 17, 2013; and
c. the amounts which STATE FARM has paid chiropractors and chiropractic facilities in Palm Beach County, Florida who have billed STATE FARM for the Relevant CPT Code Procedures, for procedures performed during the period of time from January 5, 2013 through June 17, 2013.
4. STATE FARM’s motion for protective order with regard to designated topic no. 6 of the deposition notice is GRANTED in part and DENIED in part, and its objection SUSTAINED in part, and OVERRULED in part. At the deposition of STATE FARM’s designated corporate representative, PALM BEACH PHYSICIAL MEDICINE shall be entitled to conduct inquiry regarding the factual basis, but not the legal basis, supporting each and every defense to payment asserted by STATE FARM as to this claim.
5. STATE FARM’s objections to item nos. 1 and 19 of PALM BEACH PHYSICIAL MEDICINE’s Duces Tecum is SUSTAINED in part and DENIED in part. STATE FARM shall bring the entire PIP claim file to the deposition, to include any and all documentation regarding any CPT codes that were not allowable, approved or authorized for any amount for this claim. 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.
6. STATE FARM’s objection to item nos. 2 and 3 of the Duces Tecum is SUSTAINED in part. STATE FARM shall not be required to produce the underwriting file or a copy of the application for insurance unless coverage is an issue in the case.
7. STATE FARM’s objection to item no. 5 of the Duces Tecum is SUSTAINED in part and OVERRULED in part. STATE FARM shall bring any and all records reflecting how STATE FARM determined the benefits that were owed to PALM BEACH PHYSICAL MEDICINE, including, but not limited to, any and all explanations of benefits, reduction analyses, and billing analyses for this claim. STATE FARM shall not waive any privilege by referring to such materials in answering any questions at the deposition.
8. STATE FARM’s objection to item no. 6 of the Duces Tecum is SUSTAINED in part and OVERRULED in part. STATE FARM shall bring any and all writings, memoranda, notes or other material reflecting bills submitted for payment and the dates that the bills were received by STATE FARM from PALM BEACH PHYSICAL MEDICINE or anyone else, including the bills themselves showing the date stamps and any logs showing receipt of the bills. STATE FARM shall not waive any privilege by referring to such materials in answering any questions at the deposition.
9. STATE FARM’s objection to item no. 7 of the Duces Tecum is SUSTAINED in part and OVERRULED in part. STATE FARM shall bring any and all applicable fee schedules, manuals, documents, data and research used to determine the payment for charges for the services rendered, including how these items were used to determine the reasonable amount for the services billed. STATE FARM shall not waive any privilege by referring to such materials in answering any questions at the deposition.
10. STATE FARM’s objections to item nos. 8 and 12 of the Duces Tecum is SUSTAINED. STATE FARM need not produce Explanations of Review (“EORs”) or a report reflecting reimbursement levels in the community for the period of time from December 1, 2007 through December 31, 2007.
11. STATE FARM’s objections to item nos. 9-11 and 13 of the Duces Tecum is OVERRULED. STATE FARM shall have the option of producing at the deposition a report using Decision Point Software or similar software (item no. 13 of PALM BEACH PHYSICAL MEDICINE’s duces tecum), or EORs and bills (item nos. 9, 10 and 11 of PALM BEACH PHYSICAL MEDICINE’s duces tecum). In the event that STATE FARM produces a report using Decision Point Software or similar software, in lieu of EORs and bills, the report shall reflect the following information:
a. identification of chiropractors and chiropractic facilities located within the Community of Palm Beach County, Florida, who have performed the Relevant CPT Code Procedures during the period of time from January 5, 2013 through June 17, 2013, and who have billed STATE FARM for those procedures;
b. the amounts charged by chiropractors and chiropractic facilities within the Community of Palm Beach County, Florida, for performing the Relevant CPT Code Procedures during the period of time from January 5, 2013 through June 17, 2013;
c. the amounts allowed by STATE FARM as reasonable, approved or authorized charges for the Relevant CPT Code Procedures performed by chiropractors and chiropractic facilities within the Community of Palm Beach County, Florida, performed during the period of time January 5, 2013 through June 17, 2013;
d. the amounts paid by STATE FARM to chiropractors and chiropractic facilities located within the Community of Palm Beach County, Florida for the Relevant CPT Code Procedures, performed during the period of time January 5, 2013 through June 17, 2013.
12. In the event that STATE FARM produces EORs and bills in lieu of a report, the documents to be produced shall consist of the following:
a. Random sampling of at least ten (10) EORs for each of the CPT procedure codes provided by PALM BEACH PHYSICAL MEDICINE in this case, reflecting the charges of other chiropractors and chiropractic facilities that practice in Palm Beach County, Florida and the amounts approved by STATE FARM as reasonable charges for those procedures, for procedures performed during the period of time from ten (10) days prior to the February 4, 2013 — May 17, 2013 dates of service in this case through the dates of service in this case.
b. Random sampling of at least ten (10) EORs for each of the CPT procedure codes provided by PALM BEACH PHYSICAL MEDICINE in this case, reflecting the charges of other chiropractors and chiropractic facilities that practice in Palm Beach County, Florida and the amounts approved by STATE FARM as reasonable charges for those procedures, for procedures performed during the period of time from the February 4, 2013 — May 17, 2013 dates of service in this case through ten (10) days after the dates of service in this case.
c. Random sampling of at least ten (10) bills for each of the CPT procedure codes provided by PALM BEACH PHYSICAL MEDICINE in this case, reflecting the usual and customary charges of other chiropractors and chiropractic facilities that practice in Palm Beach County, Florida for procedures performed during the same month and year during which the CPT procedure code was provided by PALM BEACH PHYSICAL MEDICINE in this case.
13. STATE FARM’s objections to item no. 16 of PALM BEACH PHYSICAL MEDICINE’s duces tecum is SUSTAINED in part and OVERRULED in part. STATE FARM shall bring any and all documentation regarding the drafting of EORs, as relates to this case, but shall not be required to bring documentation regarding the drafting of EORs regarding other cases.
14. STATE FARM’s objections to item no. 18 of the Duces Tecum is SUSTAINED. STATE FARM need not produce documentation regarding the identity of the person, who, on STATE FARM’s behalf, authorized the method used to determine the allowable, approved or authorized amount.
15. With regard to item nos. 20, 21 and 22 of the Duces Tecum (documentation regarding any Independent Examinations of Bibiana Jaimez, any Examination Under Oath or Recorded Statement of Bibiana Jaimez and any Peer Review of Bibiana Jaimez’ medical records), to the extent that such documentation exists and STATE FARM intends to rely upon or use same at trial, it must be produced.
16. The depositions of the parties’ respective corporate representatives shall be scheduled within thirty (30) days from the date of this Order, to take place within ninety (90) days from the date of this Order.
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