23 Fla. L. Weekly Supp. 177a
Online Reference: FLWSUPP 2302BUTLInsurance — Personal injury protection — Discovery — Depositions — Motion to compel deposition of physician who made determination that insured suffered emergency medical condition is denied where it is undisputed that physician is qualified medical provider, and PIP statute does not permit insurer to challenge determination of qualified provider that insured had emergency medical condition
HESS SPINAL & MEDICAL CENTERS, P.A., a.a.o. Ton’Taja Butler, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 14-CC-8145, Division I. July 30, 2015. Honorable Joelle Ann Ober, Judge. Counsel: David M. Caldevilla, de la Parte & Gilbert, P.A., Tampa; and Christopher P. Calkin and Mike Koulianos, Law Offices of Christopher P. Calkin, P.A., Tampa, for Plaintiff. Lee D. Willis, Andrews, Biernacki, Davis, Milev & Polsky, P.A., Lakewood Ranch, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TOCOMPEL DEPOSITIONS, AND GRANTING PLAINTIFF’SMOTION FOR PROTECTIVE ORDER
THIS CAUSE came before the Court on July 28, 2015, concerning: (1) the “Motion to Compel Depositions” filed on November 5, 2014 by Defendant Progressive Select Insurance Company; and (2) the “Motion for Protective Order” filed on July 24, 2015 by Plaintiff, Hess Spinal & Medical Centers, P.A., as assignee of Ton’Taja Butler. The Court, having considered the motions, the record, and the arguments of counsel, and being otherwise advised in the premises,
ORDERED AND ADJUDGED as follows:
1. It is undisputed that Robert D’Amico, D.O. issued a written determination finding that the insured patient suffered an emergency medical condition as a result of injuries sustained in the subject automobile accident. It is also undisputed that Dr. D’Amico is a physician licensed under Chapter 459, Florida Statutes.
2. The Defendant seeks to compel Dr. D’Amico’s deposition for the purposes of challenging the basis of his emergency medical condition determination. However, the Plaintiff contends that issue is irrelevant and that the deposition is not reasonably calculated to lead to admissible evidence.
3. The Court agrees with the Plaintiff. Section 627.736(1)(a)3 and 4, Florida Statutes (2013) present the question of whether one of the types of health care providers listed therein “determined” that the insured person had or did not have an emergency medical condition. Nothing in Section 627.736, Florida Statutes (2013) suggests or implies that the factual or medical basis giving rise to that determination is subject to dispute or challenge. See, Dr. Craig Selinger, D.C., P.A., d/b/a Selinger Chiropractic & Acupuncture, a.a.o. Jonathan Grant v. Enterprise Leasing Co. of Florida, LLC, 22 Fla. L. Weekly Supp. 163a (Broward County Ct. Aug. 8, 2014) (there is no express mechanism in the PIP statute to allow an insurer to challenge whether an insured has an emergency medical condition); First Choice Chiropractic & Rehabilitation Center, Inc., d/b/a First Choice Care Chiropractic, a/a/o Ilerta Jean Baptiste v. Progressive American Insurance Company, 22 Fla. L. Weekly Supp. 617a (Polk County Ct. Dec. 9, 2014) (the PIP statute does not contain any provision permitting an insurer to challenge a provider’s determination that a claimant had an emergency medical condition, and it appears there is no case law permitting such a challenge).
4. Accordingly, the Defendant’s “Motion to Compel Depositions” filed on November 5, 2014 is DENIED, and the Plaintiff’s “Motion for Protective Order” filed on July 24, 2015 is GRANTED.
