22 Fla. L. Weekly Supp. 644a
Online Reference: FLWSUPP 2205KERMInsurance — Personal injury protection — Discovery — Documents — HMO and PPO contracts between medical provider and other insurers are confidential, trade secret and proprietary documents that are not discoverable and cannot reasonably lead to discoverable evidence — Medicare fee rates are not relevant to determination of reasonableness of charges in PIP case — Requests to produce other documents inquire into issues not raised in pleadings and are, therefore, not relevant to litigation
TRI-COUNTY ACCIDENT CLINIC, LLC (SPENCER KERMISCH), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 13-010056 COCE 51. October 30, 2014. Martin R. Dishowitz, Judge. Counsel: Chris Tadros, Law Office of Chris Tadros, PA, Fort Lauderdale, for Plaintiff.
ORDER LIMITING SCOPE OF DEPOSITION
THIS CAUSE came to be considered on October 28, 2014 on Plaintiff’s Motion for Protective Order and to Limit Scope of Deposition in Regards to Deposition of Billing Person/Office Manager and the Person with the Most Knowledge of the Issues Raised in the Complaint. The Court having reviewed the documents, and the relevant legal authorities, and the Court having been sufficiently advised in the premises grants Plaintiff’s motion as to Paragraph numbers, finds as follows:
ORDERED AND ADJUDGED:
Plaintiff, Tri-County Accident Clinic, LLC, is the assignee of Spencer Kermisch. Plaintiff filed suit for benefits against the Defendant, State Farm Mutual Automobile Insurance Company, for PIP benefits. The Defendant served the Plaintiff with a deposition notice for Plaintiff’s Corporate Representative, attaching to said notice a duces tecum request.
Paragraph 11 of the Defendant’s duces tecum requests:
“All lists, and/or document showing the reimbursement rates accepted by the Plaintiff provider for any PPO, HMO, private health plan, Medicare, Medicaid, workers compensation, and/or any other insurance plan, for the CPT code(s) for service(s) rendered to the insured for the 6 months prior to and the 6 months subsequent to the services rendered to the insured that are in issue in this matter.”
Paragraph 17 of the Defendant’s duces tecum requests:
“All agreements between You and any Payor in effect from 6 month before the 1st date of service through 6 months after the last date of service regarding the amount You charge for the CPT Codes at issue in this case.”
Paragraph 22 of the Defendant’s duces tecum requests:
“To the extent that You were paid by any Payor an amount less than the amounts You have charged for the Procedure at issue in this case, produce all documents reflecting the different amounts that You were paid for each such Payor from 3 months before the 1st date of service through one month after the 1st date of service.”
Paragraph 23 of the Defendant’s duces tecum requests:
“All agreements between You and any party relating to any of Your receivables or bills involving the Procedure Codes at issue in this case that were factored, or sold, assigned, or transferred to another party, and were in effect 6 months before the 1st date of service through 6 months after the last date of service.”
Paragraph 24 of the Defendant’s duces tecum requests:
“To the extent that You accepted any amount from any party subject to an agreement, less than the amounts You have charge for the Procedure Codes at issue in this case, produce all documents reflecting the different amount that You accepted from each party from 3 months before the 1st date of service through one month after the 1st date of service.”
Paragraph 27 of the Defendant’s duces tecum requests:
“All Medicare cost reports related to the procedure codes at issue in this case, if you bill Medicare.”
With regard to the Defendant’s requests for information contained in Paragraphs 11, 17, 22, 23, 24 and 27, the Plaintiff seeks a protective order on the grounds that the requests seek documents that are confidential, trade secret, proprietary and not relevant in the context of PIP benefits. The Defendant argues it is entitled to this information in order to challenge the reasonableness of the Plaintiff’s charges.
The Court adopts the reasoning set forth in Rivero Diagnostic Center, Inc. (Disney Companioni) vs. State Farm Mutual Automobile Insurance Company, Case No. 13-12029-SP-25 (11th Judicial Circuit, Miami-Dade County, April 21, 2014) (Cohn, J.) [21 Fla. L. Weekly Supp. 690a]. Specifically, the Court finds that notably absent from Florida Statute §627.736(5)(a), is language stating that HMO/PPO contract rates may be considered in determining whether or not a charge for treatment is reasonable. Florida Statute §627.736(5)(a) (1) states:
“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. (Emphasis added).
The Court finds that if the Legislature had intended to include HMO and PPO contract reimbursement rates to be considered as factors when determining the reasonableness of a Plaintiff’s charges it could have easily added specific language to accomplish that effect.
The Court’s holdings is also informed by the Florida Supreme Court decision in Allstate Ins. Co. vs. Holy Cross Hospital, Inc. 961 So.2d 328 (FLA. 2007) [32 Fla. L. Weekly S453a]. In Holy Cross, Allstate Insurance Company was attempting to pay a reduced rate based on a PPO contract that it had entered into with Beech Street Corporation, a third-party provider network. Holy Cross Hospital argued that Allstate Insurance Company could not take advantage of the reduced rate contract because Allstate did not directly enter into a reduced rate contract with Holy Cross Hospital as a preferred provider and because Allstate did not provide its insured with a PPO policy as prescribed in Florida Statute §627.736 (10) (Florida Statute §627.736 (9) in the statute’s 2011 version). In rejecting the argument of Holy Cross Hospital the Court held that:
“[i]t would be a strained reading to interpret [F.S. §627.736 (10)] as prohibiting insurers from entering into contracts with health care providers unless the contract is utilized for the sole purpose of issuing PPO policies. Further, absent an express prohibition against such contracts, we do not read the permissive “may” in the first sentence as precluding the types of contractual relationships that Allstate allegedly negotiated in this case.” Id. at 335.
However, as noted Rivero, Allstate was only able to pay a reduced rate because it had entered into “. . . an enforceable contract by which Holy Cross agreed to accept PPO rates from Allstate for any of its insureds that received treatment covered by their PIP policies.” Id. 332, n.2. As the court noted in Rivero “The contractual relationship among the parties in Holy Cross is key to the Supreme Court’s decision to allow Allstate to pay the reduced PPO rate.” Rivero at 4. In the case at bar, as in Rivero, the Defendant has not entered into any HMO or PPO contract with either the Plaintiff or with a third-party network provider. Notwithstanding this fact, the Defendant seeks to avail itself of by attempting to obtain the benefits of an HMO/PPO contract without having entered into any such agreement. This Court finds that because the amount paid by an insurer subject to a negotiated rate contract has no bearing on a provider’s reasonable charge the Defendant’s requests for information concerning HMO and PPO contracts is irrelevant.
The apples to orange distinction between HMO and PPO contracts and PIP insurance contracts has been recognized by several County Court opinions. Pan Am Diagnostic Services, Inc. vs. Metropolitan Casualty Insurance Company, Case No. 10-04683-COCE-55 (17th Judicial Circuit, Broward County, July 11, 2012) (Zeller, J.) [19 Fla. L. Weekly Supp. 874a], Millennium Radiology, LLC vs. State On Mutual Automobile Insurance, Co., Case No. 11-26064-SP-23-03 (11th Judicial Circuit, Miami-Dade County, April 3, 2014) (Singer-Stein, J.), Rivero Diagnostic Center, Inc. vs. State Farm Mutual Automobile Insurance, Co., Case No. 13-12029-SP-25 (11th Judicial Circuit, Miami-Dade County, April 21, 2014) (Cohn, J.) [21 Fla. L. Weekly Supp. 690a], Manuel V. Feijoo, M.D. & Manuel V. Feijoo, M.D., PA United Automobile Insurance Company, Case No. 13- 12281-SP-25, (11th Judicial Circuit, Miami-Dade County, April 3, 2014) (Pedraza, J.), Manuel V. Feijoo, M.D. & Manuel V. Feijoo, M.D., PA vs. United Automobile Insurance Company, Case No. 13-12283-SP-25, (11th Judicial Circuit, Miami-Dade County, April 3, 2014) (Pedraza, J.), Manuel V. Feijoo, M.D. & Manuel V. Feijoo, M.D., PA vs. United Automobile Insurance Company, Case No. 12-19140-SP-25, (11th Judicial Circuit, Miami-Dade County, April 3, 2014) (Pedraza, J.).
The Court’s decision to prevent disclosure of HMO and PPO contracts is equally persuaded by Florida Circuit Court decisions that negotiated rate contracts are trade secrets and proprietary in nature. Holmes Reg’l Med. Ctr., Inc. v. Agency for Health Care Admin., 731 So. 2d 51 (1st DCA, 1999) [24 Fla. L. Weekly D810a]. See also Mark Weinberg, DC, PA vs. United Automobile Insurance Company, Case No. 11-14907-SP-23, (11th Judicial Circuit, Miami-Dade County, May 2, 2013) (Johnson, J.). The Court recognizes that Section §90.506, Florida Statutes, states that “[a] person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice.” Id. at 53.
The Court finds, consistent with the case of Hialeah Medical Associates Inc. (Ana Lexcano) vs. United Automobile Insurance Company, that payments received by a provider that are based on Medicare Part B are not relevant in the context of a determination of the reasonableness of a Plaintiff’s charge in a PIP case. Case No. 12-229-AP (Fla. 11th Judicial Circuit, March 7, 2014) [21 Fla. L. Weekly Supp. 487b], rhng. den. In the Lexcano case United Auto made payment to Hialeah Medical using Medicare Part B Fee Schedule as a method to calculate reimbursement. Hialeah Medical argued that the Defendant’s payment was improper as United Auto had not properly incorporated Medicare Part B Fee Schedule into its policy and, therefore, United Auto could not use Medicare Part B Fee Schedule as a method to calculate reimbursement. Hialeah Medical further argued that because United Auto did not incorporate Medicare Part B Fee Schedule into its policy it should be precluded from arguing Medicare Fee Schedule to establish that its bills were reasonable. The trial court denied Hialeah Medical’s summary judgment motion and the matter was set for trial.
Over the Plaintiff’s objection the Defendant was allowed to introduce testimony of its adjuster that United Auto based its pricing on fee schedules in the community, including Medicare Fee Schedule. After trial the jury returned a verdict in favor of United Auto. Hialeah Medical appealed the denial of its motion for summary judgment as to price and the final judgment rendered in favor of United Auto. The Florida 11th Judicial Circuit Court, acting in its appellate capacity agreed with Hialeah Medical and held that:
“Medicare Fee Schedules are not relevant in PIP cases, and should not be used. In 2008, the legislature allowed such schedules to be used as an alternative reimbursement method that insurers may use it they select such a fee schedule in their policies has been chosen method of calculating reimbursements. Here when the insurance policy was issued in 2007, the law had not been changed, nor had United Auto elected to rely on Medicare fee schedule in its policies.” Id. at 5. (Citing Florida Statutes § 627.736 (5) (a) 2 (d); GEICO Indemnity Company vs. Virtual Imaging Services, Inc., 79 So.3d 55 (Fla. 3rd DCA 2011) [36 Fla. L. Weekly D2597a].
This Court follows the well-reasoned decision of the Lexcano Court and finds that Medicare Part B Fee Schedule is irrelevant in a determination of the reasonableness of the providers charges, but rather can only be used as an alternate reimbursement method when properly incorporated into an insurance policy. See also GEICO General Insurance Company v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. July 3, 2013) [38 Fla. L. Weekly S517a]. The Court finds this ruling to be consistent with the Florida Supreme Court and the Florida 3rd District Court of Appeals holdings that reject equating Medicare with insurance and recognizing that Medicare is in actuality a social welfare program. Atkins vs. Allstate Ins., Co., 382 So.2d 1276 (Fla. 1980) (“Medicare is a social welfare program and not an insurance or a reimbursement plan within the everyday and ordinary meaning of these terms.”); American Risk Assur. Co. vs. Benrube, 407 So.2d 993 (Fla. 3rd DCA 1981) (“The waiver authority is consistent with the prior judicial determination that Medicare is a social welfare program and not an insurance or a reimbursement plan within the ordinary meaning of these terms.”). Therefore, any introduction of Medicare rates would not be relevant to the issue of whether or not the Plaintiff’s charges were reasonable.
To the extent that the information requested in Paragraph 22 is not asking for HMO/PPO or Medicare payment information the Plaintiff shall disclose responsive documents to the extent that the documents do not contain any patient information. Disclosure of patient information by the Plaintiff to anyone but another healthcare practitioner involved in the care or treatment of the patient, absent a written authorization from the patient whose information is to be disclosed, is prohibited by Florida Statute §456.057(7). The statue provides a very limited, specific exception to this general rule in cases involving medical negligence or administrative proceedings in which a healthcare practitioner or provider his or reasonably expects to be a defendant in a case. In such a circumstance patient confidential information may be disclosed at a deposition, evidentiary hearing, or trial if proper notice has been given to the patient, whose information is to be disclosed. F.S. 456.057(8). The Court notes that document containing patient information shall not be produced even if redacted as any such disclosure would constitute irreparable injury to the privacy rights of the patient whose information is to be disclosed. Graham v. Dacheikh, 991 So. 2d 932 (Fla. 2nd DCA, 2008) [33 Fla. L. Weekly D2015a].
The Defendant has requested numerous additional categories of documents which bear no relationship to the issues raised in this case as framed by the pleadings. Specifically, the Defendant requests:
Paragraph 2 of the Defendant’s duces tecum requests:
“The professional licenses, certifications, and approvals of Plaintiff, its employees, and Independent contractors.”
Paragraph 7 of the Defendant’s duces tecum requests:
“Any and all occupational and/or state licenses of any type in the name of Plaintiff, its employees, and independent contractors.”
Paragraph 8 of the Defendant’s duces tecum requests:
“All corporate paperwork of TRI-COUNTY ACCIDENT CLINIC, LLC, including but not limited to declaration of Corporation, corporate charter, stock certificates, and corporate minutes.”
Paragraph 12 of the Defendant’s duces tecum requests:
“Maintenance records for all equipment used in the care of SPENCER KERMISCH.”
Paragraph 13 of the Defendant’s duces tecum requests:
“Records of certification, inspection, and licensing for any and all diagnostic equipment used in the care of SPENCER KERMISCH.”
Paragraph 14 of the Defendant’s duces tecum requests:
“Purchase or lease agreement for any and all equipment used in the care of SPENCER KERMISCH.”
Paragraph 18 of the Defendant’s duces tecum requests:
“All agreements between You and any party relating to preparation, submission and/or collection of bills for medical services.”
Paragraph 28 of the Defendant’s duces tecum requests:
“All documents evidencing the amount, method of payment, and date received if any patients 20% Co-payment for the services at issue in this case from 6 month before the 1st date of service through 6 months after the last date of service.”
It is the Plaintiff’s burden to prove: 1) that the loss occurred 2) that there was a contract in full force and effect pursuant to Florida Statute 627.736 that covered the patient, and 3) that the medical services sued on were reasonable, necessary and related to that loss. Additionally, the Defendant has raised as an affirmative defense that the Defendant is not responsible for payment of any of the services provided by the Plaintiff based on the findings of an independent medical examination and/or peer review. (Defendant additional affirmative defenses were disposed of upon hearing defendants motion for summary judgment on March 27, 2014). Therefore, the only issues before the court is whether or not the Plaintiff’s charges were reasonable, related and necessary.
The Court has the authority pursuant to Florida Rules of Civil Procedure §1.280(c), for good cause shown, to make in order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including ordering that certain discovery not be had, that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters. The Defendant should not be allowed to engage in a fishing expedition on a quest to find additional defenses which have not to date been plead. The Defendant is not permitted to procure carte blanche irrelevant testimony from any deponent. Allstate Insurance Company v. Joyce Langston, 655 So.2d 91 (Fla. 1995) [20 Fla. L. Weekly S217a]. The court finds that the information contained in Defendant’s duces tecum Paragraphs 2, 7, 8, 12, 13, 14, 18 and 28 inquired into issues not raised in the pleadings and, therefore, that are not relevant in the current litigation.
The Court also prevents the disclosure of any information contained in Paragraph 28 of the Defendant’s duces tecum request to the extent that such a disclosure would divulge information of other patients treated by the Plaintiff, but not included as parties in the case at bar, for the reasons stated above concerning patient privacy concerns.
The parties have agreed that the Plaintiff will provide testimony as to the names of any and all shareholders to the Plaintiff Corporation in response to Paragraph 9 of the Defendant’s duces tecum. Also, the parties have agreed that the Plaintiff will provide testimony as to the names of any and all employees and independent contractors who were involved in the treatment of the claimant.
Based on the foregoing, Plaintiff’s Motion is hereby GRANTED as to the following duces tecum requests: 2, 7, 8, 11, 12, 13, 14, 17, 18, 22 (except as permitted above), 23, 24, 27 and 28.
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