23 Fla. L. Weekly Supp. 834a
Online Reference: FLWSUPP 2308BROWInsurance — Personal injury protection — Discovery — Interrogatories — Insurer that elected to calculate reimbursement utilizing statutory fee schedule is not entitled to discovery on matters related to reasonableness of charges — Provider is required to answer interrogatory inquiring about any prior treatment of insured by provider where response may lead to information relevant to issue of medical necessity of treatment
ST. JOHNS MEDICAL CENTER, as assignee for MELISSA BROWN, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2014-SC-1821-XXXX-MA, Division C. March 9, 2015. Brent D. Shore, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. David Gagnon, Taylor, Day, Grimm & Boyd, Jacksonville, for Defendant.
ORDER GRANTING, IN PART, AND DENYING,IN PART, DEFENDANT’S MOTION TO COMPELBETTER ANSWERS TO INTERROGATORIES
This matter is before the Court on the Defendant’s, State Farm Mutual Automobile Insurance Company (“State Farm”), motion to compel better answers to interrogatories. Having considered the motion, the record, and the arguments of counsel, the Court finds as follows:
This matter arises out of an action by the Plaintiff, a medical provider, to recover Personal Injury Protection (“PIP”) benefits from the Defendant pursuant to section 627.736, Florida Statutes. The Plaintiff, as the assignee of the insured, Melissa Brown, is seeking additional payments under the PIP policy for the treatment of injuries suffered by Ms. Brown as a result of an automobile accident. Pursuant to this litigation, the Defendant served the Plaintiff with a list of written interrogatories. The Plaintiff objected to twelve of the twenty-five interrogatories. The following interrogatories are at issue:
3. Did Plaintiff treat Melissa Brown prior to the accident of 3/12/10? If so, please state the first date of treatment and describe each injury or reason for which Melissa Brown sought treatment from the Plaintiff from the first date of treatment until 3/12/10, specifying the reasons for treatment and, if applicable, the part of her body that was injured, the nature of the injury and the cause of said injury.
4. Has anything been paid or is anything payable from any third party for the claims raised in Plaintiff’s Complaint? If so, state the amounts paid or payable, the name and business address of the person or entity who paid or owes said amounts, and which of those third parties have or claim a right of subrogation.
10. For the three (3) years before the first date of service in your Complaint, state with particularity the percentage of your charges that you submitted to health insurers, the percentage of charges that you submitted (or held) pursuant to letters of protection, and the percentage of charges that you submitted to all other payors (identifying with particularity identities of the other classes of payors).
11. Please state the gross income from personal injury protection insurers in the three (3) years before the first date of service in your Complaint, and state the total amount of gross income in the three (3) years before the first date of service in your Complaint.
12. Have you entered into any “letter of protection” or like agreement with Melissa Brown or any attorney or other agent representing him [sic] as to your fees for treatment provided to Melissa Brown for injuries allegedly arising from the subject accident, or any agreement with anyone that would limit that party’s liability for the damages sued upon in this case? If so, please state the name and address of the person or entity with whom you made such an agreement and the date of the agreement, and state the terms of the agreement.
13. State whether you have received any payments from Melissa Brown herself on your account for treatment provided to Ms. Brown arising from the subject accident. If so, list the dates of service paid, the amounts paid and the dates those payments were received.
14. State whether you have received any payments on your account for treatment provided to Melissa Brown arising from the subject accident from any insurer other than State Farm Mutual Automobile Insurance Company, including but not limited to Medicare, Medicaid, health insurers or uninsured/underinsured automobile insurance carriers (including State Farm). If so, please state the name and address of the payor, the dates of service paid, the amounts paid, and the dates the payments were received.
15. State whether you have received any payments on your account for treatment provided to Melissa Brown due to the subject accident from attorneys representing Ms. Brown in a separate claim or litigation seeking damages for bodily injury.
20. If the answer to the preceding question is yes, please state the amount Medicare or Medicaid reimburses the Plaintiff for each of the CPT codes listed in question 17 above.
23. State the average amount that was accepted as full and final payment by the Plaintiff for all the CPT codes billed by the Plaintiff in the instant claim for the six month period before and after the service(s) at issue in the instant lawsuit.
24. Identify all insurers, federal agencies, state agencies, governmental agencies [sic] attorneys, patients or other parties that utilize or pay the Plaintiff based on any agreed amount or fee schedule and identify those who were sent bills by Plaintiff for the subject CPT codes for the six-month period before the subject services were rendered.
In the instant motion, the Defendant seeks an order compelling the Plaintiff to provide answers to these interrogatories. The Defendant argues that this information is relevant and necessary to determine whether the amount of reimbursement money sought by the Plaintiff for its medical treatment of Ms. Brown is reasonable and necessary.
According to the complaint, Ms. Brown was injured on March 12, 2010, and the Defendant made its reimbursement payment on her claim that same year. Thus, either the 2009 or 2010 version of section 627.736(5)(a), Florida Statutes, is applicable to this case.1 Section 627.736(5)(a), Florida Statutes (2010), provides in relevant part:
(a)1. Any 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, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. 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.
2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.
b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.
c. For emergency services and care as defined by s. 395.002(9) provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.
d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.
e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
As the Florida Supreme Court determined in Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 155 (Fla. 2013) [38 Fla. L. Weekly S517a], there are two different methodologies for calculating reimbursements to satisfy the PIP statute’s reasonable medical expenses coverage mandate. First, an insurer can use the reasonableness factors enumerated in section 627.736(5)(a)1. In the alternative, the insurer can elect to limit the reimbursements to a percentage of the Medicare fee schedules pursuant to section 627.736(5)(a)2. Id. at 156. These methodologies are separate and distinct, and the insurer has discretion to elect which methodology to use. Id. at 156-57.
A review of the explanation of benefits provided by the Defendant reveals that the Defendant elected to limit its reimbursement to the Plaintiff pursuant to the Medicare fee schedules as provided for under section 627.736(5)(a)2. As such, the reasonableness factors set forth under section 627.736(5)(a)1. are not applicable to this case. Consequently, interrogatories 4, 10, 11, 12, 13, 14, 15, 20, 23, and 24 seek information that is not relevant to the subject matter of this litigation.2 As for interrogatory 3, because this request may lead to relevant information outside the scope of the reasonableness of the reimbursement charges (e.g., the medical necessity of a particular treatment), this interrogatory may lead to information that is relevant to the subject matter of this litigation.
Accordingly, State Farm’s Motion to Compel Better Answers to Interrogatories is GRANTED, in part, and DENIED, in part. The Plaintiff is hereby ORDERED to provide an answer to the Defendant’s interrogatory number 3. The Plaintiff need not provide answers to the remaining interrogatories at issue in this motion.
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1The 2009 and 2010 versions of section 627.736 are the same.
2However, if it is later determined that the Defendant was not entitled to limit its reimbursement pursuant to section 627.736(5)(a)2. due to the language contained in Ms. Brown’s insurance policy, the Court may revisit this ruling.
