22 Fla. L. Weekly Supp. 706a

Online Reference: FLWSUPP 2206PRIMInsurance — Personal injury protection — Discovery — Contracts and agreements relating to reimbursement of medical provider by HMO, PPO and private insurance carriers and reimbursement rates accepted by provider from Medicaid and Medicare are not discoverable in PIP action — Reimbursement rates accepted from other PIP carriers and from third-party payors with which provider does not have negotiated rate contracts are discoverable

PHYSICIANS MEDICAL CENTER JAX, INC. A/A/O JANICE PRIMIANO, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2013-SC-2416. October 21, 2014. Eleni Derke, Judge. Counsel: Adam Saben, Shuster & Saben, LLC, Jacksonville, for Plaintiff. David Gagnon, Taylor, Day, Grimm, & Boyd, for Defendant.

ORDER DENYING IN PART AND GRANTINGIN PART DEFENDANT’S MOTION TO COMPELBETTER RESPONSES TO REQUEST FOR PRODUCTIONand BETTER ANSWERS TO INTERROGATORIES

THIS CAUSE came before the Court for hearing on October 13, 2014 on Defendant’s Motion to Compel Better Responses to Request to Production and Answers to Interrogatories. The Court, having reviewed the motion and entire Court file, read relevant legal authority, heard argument, and been sufficiently advised in the premises, finds as follows:

The issue before the Court involves whether reimbursement amounts from third-party payors is discoverable. The Defendant states that evidence of the amounts paid by third-party payors is relevant to the reasonableness of the Plaintiff’s charges; the statutory language specifically enumerates “reimbursements” as a relevant factor as to the reasonableness of the charge; and, the rules of discovery are broader than the rules of admissibility and, therefore, even assuming the documents requested are not admissible, they are still discoverable pursuant to the Florida Rules of Civil Procedure 1.280(b)(1).

The Plaintiff objects to the two Requests for Production that seek contracts and reimbursement rates from various third-party payors, as well as social welfare programs like Medicare and Medicaid. The first request seeks:

“Any and all information or documentation evidencing what Plaintiff accepted as payment from Medicare, Medicaid, Worker’s Compensation, PPO, HMO, private insurance carriers (such as Blue Cross/Blue Shield, Aetna, Cigna, United Healthcare, Humana, etc.) private pay, or any other payor including automobile insurance carriers, for the CPT codes at issue in the instant lawsuit for the year in which said services were rendered.”

The eleventh request seeks:

“Any and all contracts or agreements between the Plaintiff and Medicare, Medicaid, Workers Compensation, PPO, HMO, private insurance carriers (such as Blue Cross/Blue Shield, Aetna, Cigna, United Healthcare, Humana, etc.) private pay, or any other payor including automobile insurance carriers that establishes or outlines charges or payments for the CPT codes billed by the Plaintiff in the instant lawsuit.”

As to the contracts and agreements relating to reimbursements from HMO, PPO and private insurance carriers,¹ the Defendant’s Motion to Compel Better Responses to Request for Production and Better Answer to Interrogatories is denied because evidence of these reimbursements made pursuant to negotiated rate contracts is not probative of the reasonableness of the Plaintiff’s charges. The issue in this case is whether the Plaintiff’s charges are reasonable, not the reimbursement of the Defendant. Negotiated rate contracts offer many incentives to medical providers in exchange for accepting lower reimbursements.² See, Palms MRI Diagnostics Imaging Centers, Inc. a/a/o Diana Martin v. State Farm Mut. Ins. Co., 21 Fla. L. Weekly Supp. 1079a (Order of Broward County Court Judge Steven DeLuca dated May 21, 2014). Based on the nature of the statutory PIP payment paradigm, such incentives are foreign in a PIP context. Therefore, to delve into the reimbursement amounts for each CPT code in these negotiated rate contracts is to seek information that is not relevant to the subject matter of the pending action and can only “confuse or mislead a jury”. Palms MRI Diagnostic Imaging Center a/a/o Frank Sirker v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 1069a (Order of Broward County Court Judge Louis Schiff dated May 19, 2014).

The next argument advanced by the Defendant focuses on the language of Florida Statutes §627.736(5)(a)1, which provides, in pertinent part:

(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.

Based on the above language, the Defendant argues that reimbursement rates from third-party payors is discoverable. As noted in Rivero Diagnostic Center, Inc. a/a/o Marisely Trujillo v. State Farm Mutual Automobile Ins. Co., 21 Fla. L. Weekly Supp. 804a (Order of Miami-Dade County Court Judge Don Cohn dated April 23, 2014), this Court concurs that §627.736(5)(a)1 makes no mention of negotiated contract rates between the medical provider in this dispute and other insurers as relevant to show that a Plaintiff’s charges are reasonable. Further, because of the inherent differences with a PIP contract based on reasonable charges, any evidence of reimbursement in a negotiated rate contract to disprove the reasonableness of the medical provider’s charges is comparing “apples to oranges” and not “apples to apples”. As stated in Palms MRI Diagnostics Imaging Centers, Inc. a/a/o Diana Martin v. State Farm Mut. Ins., See, 21 Fla. L. Weekly Supp. 1079a, supra, the mere fact “that an HMO or PPO pays less, without more, does not mean that the Plaintiff’s charge is unreasonable. See, Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D2650b]. Therefore, with respect to negotiated rate contracts with HMO/PPO providers, the Defendant’s Motion to Compel Better Responses to Request for Production and Better Answer to Interrogatories and is denied. With respect to reimbursements from other PIP carriers, the Defendant’s Motion to Compel Better Responses to Request for Production and Better Answer to Interrogatories is granted. With respect to reimbursements from third-party payors to which the Plaintiff is not contracted, the Defendant’s Motion to Compel Better Responses to Request for Production and Better Answer to Interrogatories is granted.

As to the rules of discovery, although discovery is broader than what evidence may be admissible at trial, matters may only be discoverable if they are relevant to the subject matter of the pending action. See, Rivero Diagnostic Center, Inc. a/a/o Marisely Trujillo v. State Farm Mutual Automobile Ins. Co., 21 Fla. L. Weekly Supp. 804a, supra. Plaintiff presents numerous orders from sister courts finding that negotiated rate contracts are not discoverable. See, Neurology Partner, P.A. d/b/a Emas Spine & Brain a/a/o Charlene Whitley v. State Farm Mutual Automobile Ins. Co., (Duval County case number 16-2013-SC-135, order of Duval County Court Judge Scott Mitchell dated September 16, 2014); see also, Palms MRI Diagnostic Imaging Center, Inc. a/a/o Frank Sirker v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 1069a (Order of Broward County Court Judge Louis Schiff dated May 19, 2014); Craig A. Newman, D.C., P.A. a/a/o Tera Mangan v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1091a (Order of Hillsborough County Court Judge Gaston Fernandez dated August 13, 2013); and, Manuel V. Feijoo M.D. & Manuel V. Feijoo, M.D. P.A. a/a/o Elias Leoni v. United Automobile Ins. Co., (Order of Miami-Dade County Court Judge Patricia Marino Pedraza, Miami-Dade County court case number 13-12281 SP 25 (3) dated April 8, 2014). For the reasons stated previously, the Defendant’s Motion to Compel Better Responses to Request for Production and Better Answer to Interrogatories is denied as to production of negotiated rate contracts or reimbursement rates. Similarly, the Court denies the Defendant’s Motion to Compel Better Responses to Request for Production and Better Answer to Interrogatories as it relates to reimbursements for Medicare & Medicaid. These programs are not insurance as its premiums are not based on risk. The reimbursements are based on computations set by fee schedules. See, Hialeah Medical Associates, Inc. a/a/o Ana Lexcano v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b (11th Cir. App. Miami-Dade County opinion dated March 7, 2014) (“Medicare Fee Schedules are not relevant in PIP cases, and should not be used.”).

Therefore, it is ORDERED and ADJUDGED that Defendant’s Motion to Compel Better Responses to Request for Production and Better Answer to Interrogatories is DENIED with respect to negotiated rate contract reimbursements, including HMO, PPO, and private health contracts and the production of same. The Defendant’s Motion to Compel Better Responses to Request for Production and Better Answer to Interrogatories is DENIED also with respect to Medicare and Medicaid reimbursements. The Defendant’s Motion to Compel Better Responses to Request for Production and Better Answer to Interrogatories is GRANTED with respect to reimbursements from PIP carriers and reimbursements from third-party payors that do not have negotiated rate contracts. As to the other discovery sought in the Defendant’s motion, the Plaintiff agrees to provide better responses within thirty (30) days of the signing of this Order without opinion from this Court.

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¹Referred to as “negotiated rate contracts”

²Health insurers such as HMO and PPO’s pay less but they provider the doctors with a flow of business, guaranteed payment and very low risk. Palms MRI Diagnostic Imaging Centers, Inc. a/a/o Diana Martin v. State Farm, supra.

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