24 Fla. L. Weekly Supp. 443a
Online Reference: FLWSUPP 2406RODRInsurance — Personal injury protection — Lawfully rendered services — Discovery — Depositions — Motion for protective order barring PIP insurer from deposing owner of medical provider regarding qualification for exemption from licensing is granted — Lawfulness of services rendered is not issue where insurer failed to assert it as affirmative defense — Further, although insurer may address whether provider has license or has received exemption from licensing, it does not have ability to contest whether provider meets requirements for licensing or for exemption
MILLENIUM RADIOLOGY, LLC d/b/a M1LLENIUM OPEN MRI a/a/o Manuel Rodriguez, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-8353-SP-23 (04). February 25, 2015. Jason Emilios Dimitris, Judge.
ORDER
THIS CAUSE, having come before the Court on Plaintiff’s Amended Motion for Protective Order with Respect to the Defendant’s Notice of Taking the Deposition of Baruch Kahana dated February 4, 2015, the court having heard argument of the parties and being otherwise advised in the premises, it is hereby
ORDERED and ADJUDGED, as follows:Background
During the course of defending the instant PIP claim the Defendant sought to depose Dr. Baruch Kahana “regarding his personal involvement as officer and owner of Plaintiff to see if Plaintiff qualifies for exemption status under Florida Statute 400.9905(4)(g)”. The Defendant argued they were entitled to take said deposition because medical treatment must be lawfully rendered to be compensable under Florida Statute 627.736 and the Defendant contended they had a right to determine if the Plaintiff met the requirements for the exemption they claimed from licensing under State of Florida Agency for Health Care Administration (AHCA).
The Plaintiff objected to said deposition and moved for a protective order, in part, that said deposition was not reasonably calculated to lead to the discovery of admissible evidence. Dr. Baruch Kahana, a licensed medical practitioner, along with his wife, Roberta Kahana, co-own the Plaintiff. The Plaintiff not only claims an exemption from the AHCA licensing but has actually been issued a Certificate of Exemption from AHCA.Legal Analysis
The Plaintiff advanced two arguments in support of their motion for protective order. First, that the lawfulness of the instant treatment was not an issue because there was no affirmative defense asserting same and second, that the Defendant does not have the ability to contest whether or not a medical provider has complied with the requirements to obtain AHCA licensing and/or an exemption from such licensing.
A review of the Answer to the Complaint reveals that there are no affirmative defenses, much less one asserting, that the treatment was unlawful. A review of Florida Statute 627.736 does not impose an affirmative obligation on the part of a medical provider in a PIP action to prove that the treatment was lawfully rendered. Based on the foregoing it is this Court’s conclusion that unlawfulness must be asserted as an affirmative defense. See Ortega v. United Automobile Insurance Company, 847 So.2d 994 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D796a] and USAA Casualty Insurance Company [v. Pembroke Pines], 31 So.3d 234 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D613b].
Notwithstanding the foregoing this Court analyzed whether an insurance carrier in a PIP action has the ability to contest whether or not a medical provider has complied with the requirements to obtain AHCA licensing and/or an exemption from such licensing. There is no provision of the PIP statute or any other statute that provides for what the Defendant wants to do. Considering the Supreme Court’s opinion in Geico v. Virtual Imaging, 141 So.3d 147 (SCT 2013) [38 Fla. L. Weekly S517a] and the cases presented by the Plaintiff, which are outlined below, this Court finds that while the Defendant may address whether a medical provider has licensure and/or does not have an exemption from licensure an insurance carrier does not have the ability to contest whether a medical provider meets the requirements to receive AHCA licensing or whether a medical provider meets the requirements to receive an exemption from said licensing requirements.
[T]his Court finds that the Defendant does not have a private right of enforcement in the administrative code, regulatory statutes, licensing compliance regulations or medical record standards. If the facility and the treating physicians are properly licensed by the State of Florida or regulatory boards that govern these entities, then the Defendant’s inquiry ends there. The Defendant may not parse the statute or administrative requirements and inquire into the treating physician’s compliance with those requirements. Further, the Court finds that such an inquiry does not go to the efficacy of the treatment, causal connection or reasonableness of the charge and is therefore not reasonably calculated to lead to the discovery of admissible evidence.
Raymond Ali v. Glorida McCarthy, 17 Fla. L. Weekly Supp. 661a (Fla. Seminole Cty. Ct. 2010).
This Court finds that it does not have the authority. . . to determine a medical provider’s compliance or non-compliance with statutory or administrative requirements. This Defendant does not have a private right of enforcement in the administrative code, regulatory statutes, licensing compliance regulations or medical record standards and cannot raise purported noncompliance as a defense to payment of the Plaintiff’s medical expenses. There is no evidence before this Court that the non-parties have been found to be in violation of any administrative or licensing issues by the Department of Health or the Board of Medicine and this Court will not allow the Defendant to query into compliance issues unless a violation has been determined by the agency vested with enforcement of the requirements. Issues of licensing and compliance are inappropriate areas of inquiry. . . unless a determination of non-compliance has already been found by the governing agency.
Perez v. Alan, 18 Fla. L. Weekly Supp. 192a (Fla. 19th Cir. Ct. Oct. 29, 2010);
Furthermore, this Court notes that Sections 404.022, 404.042, 404.051, 404.056, 404.071, 404.101, 404.162, Florida Statutes, which provide the statutory framework for the regulation by and duties of the Department of Health for the control of radiation in the State of Florida, do not create any private cause of action for violation of the regulations. Instead, Section 404.162 provides that the Department of Health may impose penalties or suspend licenses for violation of its rules. To allow State Farm, a private entity, to deny coverage based upon an alleged violation of an administrative rule creates obligations not intended by the No Fault statute.
Milo Diagnostic v. State Farm Fire & Casualty Company, 18 Fla. L. Weekly Supp. 211a (Fla. 11th Cir. Ct. July 1, 2010). See also Windhaven Insurance Company v. Right Choice Medical, 19 Fla. L. Weekly Supp. 667c (Fla. 11th Cir. Ct. May 4, 2012).
The cases relied upon by the Defendant, Allstate Insurance Company v. Vizcay, 2013 WL 5487057 [26 Fla. L. Weekly Fed. C435a] and Active Spine Centers v. State Farm Fire and Casualty, 911 So.3d 241 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2286a] are not applicable to the facts herein. Vizcay involved a declaratory action over who actually owned a medical clinic and Active Spine Centers involved a determination that a clinic was operating unlawfully during a specific 60 day time period because it lacked AHCA licensure or an exemption.Holding
Plaintiff’s Motion for Protective Order is Granted. The Defendant may not depose Baruch Kahana as such a deposition is not reasonably calculated to lead to the discovery of admissible evidence.
