24 Fla. L. Weekly Supp. 342b
Online Reference: FLWSUPP 2405DOTTInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions are awarded where insurer failed to produce medical records and explanations of reimbursement from other medical providers to insured, asserting requirements of Health Insurance Portability and Accountability Act that were found not to be applicable to insurer in three prior cases — Motions to compel production of documents and deposition of insurer’s corporate representative are granted
EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Joan Dottin, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2016 20065 CONS. June 24, 2016. Shirley A. Green, Judge.
ORDER GRANTING PLAINTIFF’S MOTIONTO COMPEL DEPOSITION, MOTION TO COMPELPRODUCTION OF DOCUMENTS CLAIMED ASPRIVILEGED AND AWARDING SANCTIONS
THIS MATTER having come before this Honorable Court on Plaintiff’s Motion to Compel Deposition of Defendant’s Corporate Representative; Plaintiff’s Motion to Compel Production of Privilege Log Documents and this Honorable Court having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED:
1. Plaintiff’s Motion is GRANTED in all respects.
2. The Defendant shall coordinate the deposition of Defendant’s Corporate Representative to occur within 60 days of the hearing date, June 16, 2016. The parties stipulated that the scope previously provided is intended to be limited and is in fact limited to “this claim only”.
3. The Defendant is to produce within 30 days of the hearing date of June 16, 2016 a complete set of un-redacted medical records.
4. The Defendant is to produce within 30 days of the hearing date of June 16, 2016 a complete set of un-redacted Explanations of Review.
5. The Defendant is to produce within 30 days of the hearing date of June 16, 2016 a PIP log for this claim, containing the identical categories of information as contained in Exhibit A attached hereto. [Editor’s Note: Exhibit A omitted.]
6. The court is awarding sanctions in the amount of $1,500.00 against the Defendant. Although a time period for payment was not discussed, the court finds that 60 days from the date of hearing, June 16, 2016 is reasonable.
7. The basis for the sanction award is as follows: Plaintiff’s counsel appeared before this court for hearing on Defendant’s failure to provide, in response to the Plaintiff’s Request for Production, any medical records or Explanations of Benefits for any provider other than the Plaintiff. Defendant initially failed to produce documents identified as “medical bills, and explanations of reimbursement from other providers of medical services and/or supplies to the alleged claimant in this matter” asserting on a privilege log that the documents were “irrelevant and not reasonably calculated to lead to the discovery of admissible evidence and asserting the personal medical information was protected from disclosure under the patient’s right to privacy regarding medical diagnosis and treatment, Florida’s privacy regulations or any other applicable privacy status. Plaintiff’s counsel previously brought this identical motion against this defendant and this law firm before County Court Judges in Volusia County on four prior occasions, since February of this year. In each of those four prior matters, the Plaintiff’s Motion was granted in its entirety, the defendant was ordered to produce un-redacted records and EOB’s and the Defendant and its counsel was previously sanctioned $1000.00 and $1500.00 in two of the four matters.
8. The Plaintiff has established that none of the records in the Defendant’s possession are protected by HIPAA. The Department of Health and Human Services stated that “State Farm Mutual Insurance Company does not meet the definition of a covered entity. Therefore the requirements of the Privacy Rule do not apply to State Farm Mutual Insurance Company.”
Consequently, automobile insurance carriers, such as the Defendant in the instant case, are not covered. The court finds the continued actions of this Defendant are sanctionable, in the face of three prior orders from the same Circuit for the same arguments advanced and rejected on four prior occasions since February of 2016.
