24 Fla. L. Weekly Supp. 638a
Online Reference: FLWSUPP 2408SALOInsurance — Personal injury protection — Discovery — Depositions — Insurer’s corporate representative — Approval of form of notice of taking videotaped deposition duces tecum — Scope of inquiry — Documents to be produced
APPLE MEDICAL CENTER, LLC (a/a/o Salomon, Gracia), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-1452 SP 23. August 4, 2016. Jason E. Dimitris, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Ricardo Luces, Roig Lawyers, for Defendant.
[Editor’s note: Related opinion at 23 Fla. L. Weekly Supp. 604a.]
AGREED ORDER ON PLAINTIFF’S MOTION FORAPPROVAL OF FORM OF NOTICE OF TAKINGVIDEOTAPED DEPOSITION DUCES TECUM
THIS CAUSE having come before the Court on August 4, 2016, upon Plaintiff’s Motion for Approval of Form of Notice of Taking Videotaped Deposition Duces Tecum (“Notice of Taking Deposition”), and the court having considered the motion and the proposed Notice of Taking Deposition, and being otherwise fully advised, it is hereupon
ORDERED as follows:
1. This is a PIP case in which Plaintiff, APPLE MEDICAL CENTER, LLC (a/a/o Salomon, Gracia) (“APPLE MEDICAL”) is seeking benefits from a policy of insurance issued by STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (“STATE FARM”).
2. This Order relates only to the Plaintiff’s Exhibit “A” of Plaintiff’s Motion for Approval of Notice of Taking Videotaped Deposition Duces Tecum. The Court was made aware that Plaintiff has additional areas of inquiry that have been sent to Defendant that are not part of this order and may be set for hearing at a later date.
DESIGNATED TOPICS
3. Plaintiff may inquire as to following designated topics at the Rule 1.310(b)(6) Deposition of Defendant’s Corporate Representative as it relates to the claim at issue —
Topic 1). General information of the Claim.
Topic 2). Policy and coverage details of the Claim.
Topic 3). The determination to pay the Claim at a reduced rate or otherwise refuse payment of services billed by Plaintiff for the Claim.
Topic 4). Whether the amount Plaintiff charged for performing the Relevant CPT Code Procedures was unreasonable and the basis, including any underlying data and data compilations, analysis, spreadsheet(s), formula(s), average(s), survey(s), research, information and investigation to support that determination.
Topic 5). Whether the amount Plaintiff charged for performing the Relevant CPT Code Procedures was not usual or customary, and the basis, including any underlying data and data compilations, analysis, spreadsheet(s), formula(s), average(s), survey(s), research, information and investigation to support that determination.
Topic 6). Other than the Medicare Fee schedule and calculations contained in Sec. 627.736(5)(a)(2)(f), Fla. Stat., all data or data compilations, analysis or analyses, spreadsheet(s), formula(s), average(s), survey(s), research, information, investigation(s) upon which Defendant has relied to dispute the reasonableness of the amounts charged by Plaintiff for performing the Relevant CPT Code Procedures.
Topic 7). All items that were considered by the Defendant in determining the reasonableness of Plaintiff’s charges and how each of these items was utilized by the Defendant in calculating the reimbursement amounts.
Topic 8). The method/methodology and calculations utilized in reducing the Plaintiff’s charges in this case to the allowed amount indicated in any Explanations of Review or Explanations of Benefits.
Topic 10). Whether the Defendant has undertaken any research, investigation, comparative studies, statistical analysis and/or surveys of medical providers in the Community who practice in the same specialty area as the Plaintiff, within two years of the medical services that were provided by the Plaintiff in this case, for the purpose of determining (a) the usual and customary charges of medical providers in the Community for the Relevant CPT Code Procedures and (b) a reasonable charge in the Community for the Relevant CPT Code Procedures.
Topic 11). The amounts charged by medical providers in the Community who practice in the same specialty area as the Plaintiff, for the Relevant CPT Code Procedures during the Relevant Period.
Topic 12). The amounts allowed by the Defendant for the charges of medical providers in the Community who practice in the same specialty area as the Plaintiff, for the Relevant CPT Code Procedures performed during the Relevant Period.
Topic 13). Reports/charts/audits to which Defendant is privy as it relates to amounts charged by medical providers in the Community who practice in the same specialty area as the Plaintiff, for the Relevant CPT Code Procedures performed during the Relevant Period.
Topic 14). The factual basis supporting the position that the Plaintiff did not charge a reasonable price for the medical services rendered to the Patient, including any evidence to support that position.
Topic 15). If you contend that the medical services rendered by the Plaintiff to the Patient was not related to the Automobile Accident, the factual basis supporting that position, including any evidence to support that position.
Topic 16). If you contend that the medical services rendered by the Plaintiff to the Patient was not medically necessary, the factual basis supporting that position, including any evidence to support that position.
Topic 17). If you contend that the medical services rendered by the Plaintiff to the Patient was not medically necessary or not related to the Automobile Accident, all information and documentation in Defendant’s care, custody, control or possession, which pertains, refers or relates to the Automobile Accident, including but not limited to medical records and invoices from other medical providers, accident reports, damage estimates, invoices and repair bills, photographs, statements and transcripts of Examinations Under Oath.
Topic 18). The factual basis supporting each and every defense to payment asserted by Defendant as to the Claim.
Topic 19). The documents identified in the Duces Tecum that is part of this Notice of Taking Rule 1.310(B)(6) Deposition.
DUCES TECUM
4. For each of the following items, Defendant shall produce such responsive, non-privileged documents as may exist in advance of the deposition of its Corporate Representative. To the extent that responsive documents exist to which Defendant asserts a privilege, Defendant shall have those documents available for reference at the deposition, without waiving any privilege, and Defendant shall specifically identify any such documents for which Defendant asserts a privilege in an appropriate privilege log, unless Defendant has already done so —
Item 1). The entire Personal Injury Protection (PIP) claim file (pre-litigation and post-litigation) maintained by Defendant, including but not limited to: any notes/records reflecting Defendant’s review of the Claim; copies of any and all checks to Plaintiff; explanation(s) of benefits/review related to Plaintiff’s medical services rendered to the Patient; Defendant’s most up-to-date PIP payout sheet, record of payment or other form showing all bills that have been submitted for payment (whether showing bills paid in full or paid at reduced rates) and documenting when payments were made of PIP benefits on the Claim, including any computerized records; each and every letter, communication or correspondence in which Defendant notified Plaintiff of its failure to comply with any statutorily or contractually imposed conditions precedent to payment or suit; any and all responses by Defendant to Plaintiff’s demand letter(s); and actions taken by Defendant on the Claim.
Item 2). Copies of the Policy and Policy Declarations Page.
Item 3). A copy of the Notification of Insured’s Rights as required by Fla. Stat. Sec. 627.7401 delivered by Defendant to the Insured (the “Notice”), including, but not limited to: the Notice, copies of any cover letter(s) or other correspondence accompanying the Notice and copies of any documents, papers or other forms or letters included with the Notice.
Item 4). Any and all documents reflecting bills submitted by Plaintiff and the dates that the bills were received by Defendant under the Claim, including Plaintiff’s bills reflecting Defendant’s date stamps and Defendant’s logs showing date of receipt of the bills.
Item 5). Any and all correspondence, documents, materials or other items regarding the medical reports and bills received from Plaintiff related to treatment provide to the Patient.
Item 6). To the extent that they exist, any and all Independent Medical Examination (“IME”) requests and IME Reports related to the Patient.
Item 7). To the extent that they exist, any and all Examinations Under Oath (“EUO”) requests, correspondence from the Defendant related to an EUO of the Patient, EUO transcripts related to the Patient or the Automobile Accident and any and all correspondence from any agencies hired by Defendant to schedule an EUO of the Patient, who were in attendance at the time of the scheduled EUO.
Item 8). To the extent that they exist, any and all reports or medical opinions or records review conducted in connection with Plaintiff’s medical services rendered to the Patient.
Item 9). Any and all statements taken by Defendant of any witnesses with regard to any fact relevant to any issues in this case, taken prior to the filing of the lawsuit in this matter.
Item 10). Copies of any and all medical records and billing records of other Providers of medical treatment/MRI/x-rays/emergency services rendered to the Patient in this Claim.
Item 11). Documents evidencing damage to the vehicle in which the Patient was an occupant, resulting from the Automobile Accident, including but not limited to estimates of property damage, repair bills, photographs and accident reports.
Item 12). Any and all reports or statements from any expert indicating that the treatment rendered by Plaintiff was not reasonable, not related or not necessary.
Item 13). Any and all information in Defendant’s possession which Defendant reviewed or upon which Defendant relied in calculating the “reasonable amount” as defined in Fla. Stat. Sec. 627.736(5)(a)(1) for Plaintiff’s medical services rendered to the Patient.
Item 14). Other than the Policy, Medicare Fee Schedule and calculations contained in Fla. Stat. Sec. 627.736(5)(a)(2)(b)], any and all proof (including but not limited to data and data compilations, mathematical calculations, statistical analyses, spreadsheet(s), formula(s), average(s), survey(s), research, information and investigation(s) upon which Defendant relies to dispute that the amounts charged by Plaintiff for the Relevant CPT Code Procedures were not reasonable charges.
Item 15). To the extent that they exist, surveys of medical providers in the Community, that evidence, show or indicate the charges of medical providers in the Community for providing the Relevant CPT Code Procedures during the Relevant Period.
Item 16). A chart, “Geo-Zip” report, matrix, graphic depiction, spreadsheet or other visual display that reflects (1) the names and addresses of medical providers in the Community that have performed the Relevant CPT Code Procedures, during the Relevant Period, and who have billed Defendant for those procedures; (2) the amounts that other medical providers have charged for performing the Relevant CPT Code Procedures, during the Relevant Period; (3) the amounts that Defendant has allowed as reasonable, approved or authorized charges for medical providers in the Community that have billed Defendant for the Relevant CPT Code Procedures, for procedures performed during the Relevant Period; and (4) the amounts that Defendant has paid medical providers in the Community that have billed Defendant for the Relevant CPT Code Procedures, for procedures performed during the Relevant Period.
Item 19). Any and all documents that evidence, demonstrate or show that Defendant “auto-processed” the Claim or that Defendant did not “auto-process” the Claim.
5. With respect to the Duces Tecum item no. 18, Plaintiff is to amend the Notice of Taking Deposition as follows:
Item 18) Any and all documents that contain the business rule and/or methodology that was applied to Plaintiff’s bills pursuant to which Defendant determined the allowed amount for a Relevant CPT Code Procedure based upon 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.
6. With respect to the following Duces Tecum items nos. 17 and 18, Defendant shall produce responsive documents to the Court for in camera inspection within 30 days —
Item 17) A copy of any and all executed agreements/contracts between Defendant and Mitchell Medical, Mitchell International and any other third party auditing vendor if utilized to adjust, process or facilitate the adjusting or processing of the Claim and in effect during the Relevant Period.
Item 18) Any and all documents that contain the business rule and/or methodology that was applied to Plaintiff’s bills pursuant to which Defendant determined the allowed amount for a Relevant CPT Code Procedure based upon 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.
