24 Fla. L. Weekly Supp. 435a
Online Reference: FLWSUPP 2406WRIGInsurance — Personal injury protection — Discovery — Medical records or Explanations of Benefits for providers other than plaintiff — Insurer’s failure to comply — Sanctions
EMERGENCY PHYSICIANS, Inc. d/b/a EMERGENCY RESOURCES GROUP, as assignee of Patricia Wright, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2015 33449 COCI. June 17, 2016. Dawn P. Fields, Judge.
ORDER GRANTING PLAINTIFF’S MOTION TO COMPELDEPOSITION, MOTION TO COMPEL PRODUCTION ofPRIVILEGE LOG DOCUMENTS AND MOTION TOCOMPEL BETTER RESPONSES TOINTERROGATORIES AND GRANTING 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 Motion to Compel Better Responses to Interrogatories 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 within 7 days of the hearing date (June 15, 2016) to occur within 30 days of the hearing date (June 15, 2016).
3. The Defendant is to produce within 7 days of the hearing date of June 15, 2016 a complete set of un-redacted medical records.
4. The Defendant is to produce within 7 days of the hearing date of June 15, 2016 a complete set of un-redacted Explanations of Review.
5. The Defendant is to produce within 7 days of the hearing date of June 15, 2016 a PIP log for this claim, in the exact form and containing the identical categories of information as contained in Exhibit A attached hereto. Defendant’s arguments that it cannot produce what does not exist is belied by the presentation by Plaintiff’s counsel of Exhibit A.
6. The Court is awarding sanctions in the amount of $1500.00 against the Defendant, to be paid within 30 days from the date of hearing, June 15, 2016. 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 (“EOB”) for any provider other than the Plaintiff. Defendant initially failed to produce pages of 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 three prior occasions, since February of this year. In each of those three prior matters, the Plaintiff’s Motion was granted in its entirety, the defendant was ordered to produce un-redacted records and EOB’s. Upon receiving the same privilege log with the same objections in this matter, Plaintiff’s counsel sent correspondence referencing the three prior orders granting Plaintiff’s Motion to Compel these identical documents from this very defendant and their counsel and imploring Defendant to produce a complete set of medical records and Explanations of Benefits. In response, Defense counsel provided an additional pages of records, but redacted those records. The prior orders entered on identical motions on virtually identical matters with this Defendant and their legal counsel ordered the information to be produced in un-redacted form.
The Plaintiff established that none of the records in the Defendant’s possession are protected by HIPAA and provided detailed Q and A’s from the U.S. Department of Human Services website on HIPAA illustrating that an auto insurance carrier is not a covered entity, as well as a letter from the Department of Health and Human Services in response to a complaint that “State Farm Mutual Automobile Insurance attached 24 pages of personal medical records in the public record as an exhibit.”
The Department of Health and Human Services stated in their reply the Complaint “. . .the requirements of the Privacy Rule do not apply to State Farm Mutual Insurance Company.”
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 three prior occasions since February of 2016.
