22 Fla. L. Weekly Supp. 465b
Online Reference: FLWSUPP 2204LOPEInsurance — Personal injury protection — Discovery — Where reasonableness of charges is contested, reimbursement rates accepted by medical provider from other carriers for CPT codes at issue are relevant and discoverable — Discovery of negotiated reimbursement rates without disclosure of identity of contracting carrier will not violate privileges of trade secret or confidentiality
VIRTUAL IMAGING SERVICES, INC. DANIEL LOPEZ, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12 15414 SP 23 (02). Claim No. 59-A683-587. October 15, 2014. Caryn Schwartz, Judge. Counsel: Thomas Flanagan III, The Greenspan Law Firm, P.A., Boca Raton, for Plaintiff. Bahreddine Hannat, Roig Lawyers, Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONTO COMPEL BETTER ANSWERS TODEFENDANT’S DISCOVERY REQUESTS
THIS MATTER, having come before this Honorable Court on September 16, 2014 on Defendant’s Motion to Compel Better Answers to Defendant’s Interrogatories and Defendant’s First Requests for Production and this Court having heard argument of counsel and presented with the following evidence and legal arguments:
Plaintiff, Virtual Imaging Services Inc., (“Virtual”) sued Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”), alleging “Defendant did not make payment of all of the No-Fault benefits due under the policy within thirty (30) days as required by Florida Statute 627.736(4)(b)”.
Plaintiff, as the assignee of Daniel Lopez, submitted bills to Defendant in the amount of $3,600.00 (CPT codes 72146 – $1,800.00; 7214 -$1,800.00) for date of service January 31, 2011. Defendant reimbursed Plaintiff a total of $1,273.47, which Defendant contends represents 80% of the reasonable medical expense for CPT codes 72146 and 72141.
Over the course of litigation, Defendant submitted interrogatories for Plaintiff to provide information regarding reimbursement rates from other insurance carriers for the charges at issue, some of which Plaintiff has contracted with for negotiated reimbursement rates for the MRI diagnostic services.
Virtual objected to the discovery requests, claiming them to be overbroad, burdensome, not reasonably calculated to lead to discovery of admissible evidence and protected by privileges of confidentiality and trade secret.
The relevant portion of this statute provides:
A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered. . . However, such a charge may not exceed the amount the person or institution customarily charges for like services or supplies. In determining 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, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
In the case at bar, State Farm asserts that the requested information is relevant to the determination of the reasonableness of Plaintiff’s charges. Further, State Farm contends that where Virtual is not required to disclose the identity of the insurance provider, there can be no violation of the Plaintiff’s privileges of trade secret and confidentiality.
Plaintiff relies on Virtual Imaging a/a/o Raul Figueroa v. United Automobile Insurance Company, (Fla. 1lth Cir. Ct. September 9, 2014). Virtual involves an appeal of the trial court’s order finding HMO and PPO reimbursement rates to be relevant in a suit to recover PIP benefits. The trial court compelled petitioner to provide respondent, United Automobile Insurance Company (“United”) with petitioner’s HMO and PPO reimbursement rates for the services at issue. The Judges of the 11th Judicial Circuit who presided in their appellate capacity, held in part that the requested discovery might not be relevant to the instant case and found no basis to impose a reasonableness requirement to the case before it.
In Virtual, United’s insurance policy agrees to reimburse “eighty percent of all medically necessary expenses. . . .”. As a result, Virtual held that United’s policy does not impose a reasonableness requirement and thus no inquiry into the reasonableness of the charges is necessary.
State Farm reasons that unlike United’s policy, State Farm’s insurance policy does include language imposing a reasonableness requirement for payments made by State Farm pursuant to the Florida Motor Vehicle No Fault Law. State Farm Amendatory Endorsement 6910.3 reads in part:
“What We Pay is changed to read:
1. Medical Expenses. 80% of all reasonable expenses incurred for:
a. medically necessary medical, surgical, X-ray, dental, ambulance, hospital, professional nursing and rehabilitative services, eyeglasses, hearing aids and prosthetic devices; and
. . . . To determine whether a charge is reasonable we may consider usual and customary charges and payments accepted by the provider, 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.
We will not pay any charge that the No-Fault Act does not require us to pay, or the amount of any charge that exceeds the amount the No-Fault Act allows to be charged.”
Defendant proposes that even assuming, arguendo, that Virtual is applicable to the case at bar, reading State Farm’s policy in conjunction with the Virtual holding would impose a reasonableness requirement. Consequently, Plaintiff’s reimbursement amounts for the charges at issue are discoverable as a matter of law. This Court agrees.
The Court finds Virtual distinguishable on two motives. Firstly, where the party with whom Plaintiff contracts and negotiates reimbursement rates remains anonymous, there is no violation of trade secret or confidentiality. Secondly, due to United’s policy of insurance, the Virtual Court found reasonableness of the charges to be undisputed, as opposed to the case before this Court. Lastly, the Virtual holding fails to address how providing the reimbursement rates in the trial court’s order violates trade secret. For these reasons this Court finds Virtual inapplicable to the case at bar.
Where reasonableness of the charges are contested, this Court finds reimbursement rates for the CPT codes at issue to be relevant and discoverable pursuant to Fla. Stat. 627.736(5)(a)(2008). The Court finds the reasonableness of the charges to be a contested issue of fact. Further, where the Defendant is not seeking the identity of the party which Plaintiff has entered agreement(s) for the negotiated reimbursement rates and therefore, there is no reasonable probability of violating the party’s right to privilege.
Plaintiff shall provide Defendant its reimbursement rates for the CPT codes at issue, for the three months preceding the first date of service and the three months succeeding the last date of service within thirty (30) days of this order. The identities of the parties to the contract with Plaintiff shall remain anonymous. Plaintiff shall identify the payors with whom it contends to hold privilege with as “HMO #1”, “HMO #2”, “PPO #1” and so on as needed.
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