22 Fla. L. Weekly Supp. 375a
Online Reference: FLWSUPP 2203GUZMInsurance — Personal injury protection — Discovery — Documents — Medical provider’s HMO, PPO and managed care agreements, and any agreements to sell, transfer, assign or otherwise factor provider’s financial receivables are covered by trade secret privilege and are not discoverable — Medicare payments and reports, as well as deductibles and co-payments collected from other patients, are irrelevant and immaterial to determination of reasonableness of charges
POMPANO BEACH PAIN & REHABILITATION, INC. (Felix Guzman), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 13-006219 SP 26 (04). September 3, 2014. Lawrence D. King, Judge. Counsel: Stuart Koenigsberg, for Plaintiff. Jacqueline Katz, Conroy, Simberg, Ganon, et al., for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORPROTECTIVE ORDER REGARDING THE PRODUCTIONOF DOCUMENTS ATTACHED TO DEFENDANT’SNOTICE OF TAKING DEPOSITION DUCES TECUM
Plaintiff, POMPANO BEACH PAIN & REHABILITATION, INC.’s Motion for Protective Order seeking to preclude the production of documents attached as Exhibit “A” to Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s Notice of Taking Deposition Duces Tecum of Plaintiff’s designated representative on the issues of billing, pricing and reimbursement, was heard before the Court on Thursday, August 18, 2014 at the South Dade Justice Center. Stuart L. Koenigsberg, Esq., appeared on behalf of the Plaintiff, POMPANO BEACH PAIN & REHABILITATION, INC. and Jacqueline Katz, Esq. appeared on behalf of the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. The Court, after having read Plaintiff’s Motion, the attached Deuces Tecum exhibit, applicable legal authority and having heard argument of counsel, GRANTS Plaintiff’s Motion for the reasons set forth below:Factual Background
This case involves a lawsuit filed by Plaintiff POMPANO BEACH PAIN & REHABILITATION CORPORATION, a Chiropractic Clinic, seeking to collect underpayments resulting from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s application of Medicare Fee Schedules in making payment of Plaintiff’s compensable bills for no-fault insurance benefits. During the course of this litigation, Defendant noticed Plaintiff’s designated Corporate Representative, to appear for deposition to testify as to issues related to “billing, pricing and reimbursement rates.” Defendant’s 13 paragraph subpoena requested Plaintiff to produce numerous documents “Duces Tecum” including a) agreements between Plaintiff and other third parties regarding amounts charged and accepted for services rendered to other patients, b) agreements regarding the preparation of Plaintiff’s bills for its services rendered to other patients, c) documents reflecting Plaintiff’s internal billing policies, billing and fee schedules, d) agreements and documents regarding the sale, assignment, factoring or transfer of Plaintiff’s financial receivables from other patient accounts, e) Plaintiff’s communications with other health care providers, f) Medicare cost reports that may have been completed by Plaintiff and g) documents regarding Plaintiff’s collection of deductibles and co-payments from other patients. Plaintiff, in response, moved for a protective order on the basis that the production of said materials was protected by the work product and/or trade secret privileges, patient privacy and confidentiality of treatment and billing records, relevancy and that production would be unduly burdensome. Defendant, at the hearing, in support of its position, relied exclusively on §627.736(5)(a)(1) Fla. Stat. (2008), maintaining that under the statute Plaintiff was required to charge only a reasonable amount which cannot exceed their customary charge for like services and that Defendant, pursuant to the statue was entitled to discovery of the aforesaid documents to investigate whether or not Plaintiff’s charges were reasonable.Legal Analysis
At the outset, this Court notes that after having conducted 40 or so jury trials involving disputes over no-fault payments, the best method of presenting evidence regarding reasonable charges is through the testimony of expert witnesses. While now subject to the Daubert standard codified by the Florida Legislature in §90.702 Fla. Stat. (2013), a qualified expert may express an opinion as to the reasonableness of charges based upon review of credible data applied to a scientifically validated methodology. Typically, this inquiry involves some type of market analysis as to what is typically charged in a given medical community for like kind services, whether it be from a provider’s historical knowledge, review of other provider’s bills and/or reliance on a fee and coding guide. The overriding concern of this Court is to ensure that jurors, when evaluating testimony and evidence offered to assist in their determination of whether a Provider’s charges are reasonable, are not unduly influenced by information that is not relevant, prejudicial or otherwise confusing.
Turning to Plaintiff’s arguments, the court is persuaded by a recent opinion from Florida’s First District Court of Appeal in Laser Spine Institute, LLC. v. Greer, 2014 WL 3865840 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D1671a]. In Laser Spine, the Court quashed a trial court order requiring production of billing and collection documents. The Court held that billing and collection documents did contain trade secrets protected by §90.506 Fla. Stat. and that the party seeking production was required to demonstrate a “reasonable necessity” for the documents that outweighs the confidentiality of same. In this case, the Court finds that HMO, PPO, and Managed Care agreements are covered by the Trade Secret Privilege and are not ordinarily discoverable. The same would also apply to any agreements to sell transfer, assign or otherwise factor any receivables. STATE FARM has not demonstrated any “reasonable necessity” in obtaining these documents that would outweigh their confidentiality. Accordingly Plaintiff’s Motion for Protective Order regarding production of these documents is GRANTED on this basis.
The next basis raised by Plaintiff in support of its Motion for Protective Order is that the production of patient treatment and billing records are protected by the patient privacy statutes set forth in by §456.057 Fla. Stat., which contain specific confidentiality protections against the disclosure of same. Under the statute, a patient’s medical and/or billing records may not be disclosed to a third party without the patient’s written authorization. See Crandall v. Michaud, 603 So.2d 637 (Fla. 2d DCA 1992), Graham v. Dacheikh, 991 So.2d 932 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D2015a].
Plaintiff, in support of its relevancy argument, provided the Court with decisional precedent holding that evidence of contractual discounts from HMO, PPO, Managed Care and Medicare contracts and resulting payments made to other patients, aside from trade secret and patient privacy issues, are insufficient to prove that Plaintiff’s charges are reasonable. See Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D2650b][“evidence of these contractual discounts, standing alone, is insufficient to prove that Tampa General’s charges were unreasonable”]. Lastly, Plaintiff provided authority justifying the preclusion of this evidence to a jury on the additional basis that said information is misleading. Goble v. Frohman, 848 So.2d 406 (Fla. 2d DCA 2003). [28 Fla. L. Weekly D1494a] [Admission of evidence regarding collateral sources is prohibited because it “misleads the jury”]. See Pro Imaging, Inc. (Eddie Dingle) v. State Farm, Case No. 12-1850 COCE 53, (Fla. 17th Cir. Cty. 2014) [21 Fla. L. Weekly Supp. 280b] (Lee, J.). [“the underlying data should attempt to compare apples to apples to be reliable”].
As to the production of Medicare payments and reports, this Court concurs with Plaintiff’s argument that Medicare and Fee Schedule payments are not relevant in PIP cases. See Hialeah Medical Assoc., Inc. a/a/o Ana Lexcano v. United Automobile Ins. Co., 12-229 AP (Fla. 11th Cir. App. 2014) [21 Fla. L. Weekly Supp. 487b] [“Medicare Fee Schedules are not relevant in PIP cases, and should not be used”]. See also, Atkins v. Allstate Ins. Co., 382 So 2d 1276. [Medicare is not insurance]. Thus, Defendant’s argument that it should be able to consider fee schedules “applicable to automobile and other insurance coverage’s” as defined in §627.736(5)(a)(1) is without merit. Whether Plaintiff has collected co-payments or deductibles from other patients is similarly irrelevant and immaterial as to the determination of whether Plaintiff’s charges are reasonable.
As to the production of medical bills and records regarding the treatment rendered in the case which is the subject of this lawsuit as set forth in paragraph 13 of the subpoena, those issues are moot in light of the stipulation between the parties that the Plaintiff will provide copies of all non-privileged copies of its medical and billing file redacted to comply with the patient privacy and personal information concerns addressed in Fla. R. Jud. Admin. 2.425.Conclusion
In light of the foregoing, Plaintiff’s Motion for Protective Order is GRANTED as to the documents sought by Defendant in its Notice of Taking Deposition Duces Tecum in paragraphs 1 through 12. Paragraph 13 is moot for the reasons discussed above.
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