25 Fla. L. Weekly Supp. 845a

Online Reference: FLWSUPP 2509OCALInsurance — Personal injury protection — Discovery — Where insurer contests reasonableness of charges, medical provider’s objections to discovery seeking agreements between provider and any third-party payors, amounts reimbursed by all other payors, and information regarding provider’s internal cost structure are overruled

KAGAN, JUGAN & ASSOCIATES, P.A., (a/a/o OLGUINE CALIXTE), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 20th Judicial Circuit in and for Lee County. Case No. 16-SC-3866. November 9, 2017. Tara P. Paluck, Judge. Counsel: Christine King, for Plaintiff. Jarod L. Gilbert, for Defendant.

ORDER ON DEFENDANT’S MOTIONS TO COMPELBETTER RESPONSES TO DISCOVERY

THIS CAUSE having come before this Honorable Court on October 10, 2017 on 1) “Defendant’s Motion to Overrule Plaintiff’s Objections and to Compel Better Responses to Defendant’s Request to Produce,” 2) “Defendant’s Motion to Overrule Plaintiff’s Objections and to Compel Better Answers to Defendant’s Interrogatories,” and 3) “Defendant’s Motion to Determine the Sufficiency of Plaintiff’s Answers and to Compel Better Responses to Defendant’s First Request for Admissions,” and the Court having reviewed the file and relevant legal authority, and having heard argument of counsel, finds as follows:BACKGROUND

On February 2, 2013, Olguine Calixte was involved in an accident in Lee County, Florida. After the accident, Ms. Calixte received medical services at Kagan, Jugan & Associates, P.A. (“Plaintiff”). Plaintiff billed State Farm Mutual Automobile Insurance Company (“Defendant”) for said services under a purported assignment of benefits. In response to Plaintiff’s bills, Defendant approved Plaintiff’s charges at a reduced amount, and paid eighty percent of said amount. Specifically, the following CPT codes were reduced and are now at issue in this lawsuit: 99204, 99214, 72141. Plaintiff has now filed suit to recover the difference between 80% of its billed amount and the amount paid by Defendant. Based on the foregoing, the central issue in this lawsuit is the reasonableness of Plaintiff’s charges for the three CPT codes referenced above.

In an effort to obtain evidence regarding the reasonableness of Plaintiff’s charges, Defendant propounded discovery in the form of requests for production, interrogatories, and requests for admissions. In lieu of providing complete and adequate responses, Plaintiff filed numerous objections which are the subject of Defendant’s discovery motions. Although the parties were able to amicably resolve certain discovery matters contained within Defendant’s three discovery motions, Request for Production #’s 4, 9, 10, 13, 28, 30, 31, 32, Interrogatory #’s 7, 9, 11, 20, and Request for Admission #’s 4 through 16 remained at issue and were brought before this Court.ANALYSIS

Discovery in general.

A party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action. Fla. R. Civ. P. 1.280(b)(1). It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Id. See also Allstate Ins. Co. v. Langston, etc., 655 So.2d 91, 94 (Fla. 1995) [20 Fla. L. Weekly S217a] (“Discovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence.”)

Florida law on discovery favors complete disclosure because a primary purpose of the Florida Rules of Civil Procedure is to prevent the use of surprise, trickery, bluff, and legal gymnastics. Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla. 1970). In fact, there are only four exceptions to the general rule requiring complete disclosure:

(1) The subject matter of the discovery must be relevant to the cause.

(2) Discovery procedures may not be used or conducted to harass or embarrass litigants or witnesses or for malicious purposes.

(3) The inquiry must not invade a recognized privilege.

(4) Absent rare and exceptional circumstances, work product is not discoverable.

Allstate v. Boecher, 733 So.2d 993, 995 (Fla. 1999) [24 Fla. L. Weekly S187a]. As such, unless the information sought falls into one of the above categories, or is entitled to protection under Fla. R. Civ. P. 1.280(c)¹, the requested information is discoverable. See id.

Reasonableness under Fla. Stat. § 627.736.

It is well-settled that the Plaintiff bringing suit in a PIP action has the burden to prove the reasonableness of its charges. See, e.g., State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244 (Fla. 2nd DCA 2002) [27 Fla. L. Weekly D1757a]. Fla. Stat. § 627.736(5)(a)(1) (2011) provides the authority on how a reasonable charge is determined. This provision states as follows:

In no event . . . may . . . 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.

See also Allstate Ins. Co. v. Holy Cross Hospital, Inc., 961 So. 2d 328 (Fla. 2007) [32 Fla. L. Weekly S453a] (“What a provider customarily charges or has previously accepted are important factors for determining whether a fee is reasonable.”); In re: Standard Jury Instructions in Civil Cases (No. 06-02), 966 So. 2d 940 (Fla. 2007) [32 Fla. L. Weekly S563a].

Although Florida case law is conflicting as to what information is specifically discoverable in a PIP case, numerous judges in Florida have allowed the same or similar discovery as sought by the Defendant in this case. See, e.g., Pembroke Pines MRI (a/a/o Elixardo Ramirez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 629a (Fla. 17th Cir. Cty. Ct. 2013) (holding that information regarding other types of insurance accepted by provider and reimbursement amounts that provider has agreed to accept from other insurers, including HMO and PPO agreements, is discoverable); Dennis M. Kuryliw, D.C. (a/a/o Ona Riffle) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 933a (Fla. 6th Cir. Cty. Ct. 2014) (holding that documentation and information relating to a provider’s reimbursement contracts and amount provider has agreed to accept is discoverable); Flagler Hospital, Inc. (a/a/o Mitchell R. Ball) v. MGA Ins. Co., 18 Fla. L. Weekly Supp. 610b (Fla. 7th Cir. Cty. Ct. 2011) (holding that copies of agreements between the provider and HMOs, PPOs, and other private insurance in effect on the date of service at issue and for the codes at issue are discoverable).

Importantly, the Second District Court of Appeal provides guidance as to the type of discovery allowed when the reasonableness of a provider’s charge is at issue. See Giacalone v. Helen Ellis Memorial Hospital Foundation, Inc., 8 So. 3d 1232 (Fla. 2nd DCA 2009) [34 Fla. L. Weekly D881b]. In Giacalone, a gentleman was admitted to the hospital on an emergency basis and signed a standard form requiring him “to pay the account at the hospital in accordance with the regular rates and terms of the hospital.” Id. at 1234. After receiving an emergency procedure, the hospital billed Mr. Giacalone over $50,000.00. Id. Mr. Giacalone refused to pay the full amount of the charge and the hospital sued over the remaining balance. Id. In defense of the hospital’s claim that its charges were reasonable, Mr. Giacalone propounded reasonableness discovery which received numerous objections. Id. After the Circuit Court denied Mr. Giacalone’s motion to compel said discovery, the Second DCA reversed and held that 1) information regarding the hospital’s charges and the discounts it grants to the various categories of patients it serves (e.g., self-pay patients, Medicare patients, Medicaid patients, charity care patients, and privately insured patients), and 2) the hospital’s internal cost structure, was not only relevant, but critical to the issue of whether the hospital’s charges were reasonable. Id. at 1235. See also Columbia Hospital (Palm Beaches) Limited Partnership v. Hasson, 33 So. 3d 148 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1067a] (holding that discovery regarding discounts offered to different classes of patients and the hospital’s internal cost structure is discoverable so long as the Court protects the privileged aspects of the information).

In the case at bar, Defendant is specifically seeking, inter alia, 1) any and all agreements/contracts between the Plaintiff and any third-party payors (i.e., Medicare, Medicaid, HMO/PPO, private insurance carriers, etc.) that were in effect during the relevant time frame (i.e., January 29, 2013 through October 9, 2013), 2) information regarding amounts reimbursed by all other payors for CPT codes 99204, 99214, and 72141 during the relevant time frame, and 3) information regarding Plaintiff’s internal cost structure during the relevant time frame. As outlined above, Defendant’s discovery requests are relevant to the central issue presented in this case; to wit, whether the Plaintiff’s charges for the procedures at issue were reasonable. As such, it is

ORDERED AND ADJUDGED as follows:

1. “Defendant’s Motion to Overrule Plaintiff’s Objections and to Compel Better Responses to Defendant’s Request to Produce” is Granted as follows:

a. Plaintiff objections to Request for Production #4, 9, and 13 are overruled. Plaintiff shall provide better answers and produce responsive documents to each of the foregoing requests. Specifically, Plaintiff shall produce any and all contracts and/or agreements between Plaintiff and any payor (e.g., Medicare, Medicaid, Worker’s Compensation, PPO, HMO, private insurance carriers, etc.) in effect from January 29, 2013 through October 9, 2013. Plaintiff may redact patient information to protect individual privacy concerns. Plaintiff may also redact reimbursement rates for CPT codes not at issue in this lawsuit. To avoid disclosure of any trade secret or proprietary information, Plaintiff may utilize an alias such as HMO #1, PPO #1, etc. to describe the relevant payor. To the extent that Plaintiff received less than the amount billed for the CPT codes at issue in this case, Plaintiff shall also produce any and all documentation reflecting the different amounts that Plaintiff received from any payor (e.g., Medicare, Medicaid, Worker’s Compensation, PPO, HMO, private insurance carriers, etc.) from January 29, 2013 through October 9, 2013.

b. Plaintiff’s objections to Request for Production #10, 30, and 31 are overruled. Plaintiff shall provide better answers and produce responsive documents to each of the foregoing requests. Specifically, Plaintiff shall produce any and all documents reflecting Plaintiff’s billing policies and/or collection practices that were in effect from January 29, 2013 through October 9, 2013 which allow for the acceptance of a lesser amount than the billed amount for the CPT codes at issue in this case.

c. Plaintiff’s objections to Request for Production #28 are overruled. Plaintiff shall provide a better answer and produce responsive documents to this request. Specifically, Plaintiff shall produce any and all documents reflecting Plaintiff’s costs associated with the CPT codes at issue during the relevant time period (i.e., January 29, 2013 through October 9, 2013).

d. Plaintiff’s objections to Request for Production #32 are overruled. Plaintiff shall provide a better answer and produce responsive documents to this request.

2. “Defendant’s Motion to Overrule Plaintiff’s Objections and to Compel Better Answers to Defendant’s Interrogatories” is Granted as follows:

a. Plaintiff objections to Interrogatory #7 are overruled. Plaintiff shall provide a better answer. Specifically, Plaintiff shall answer under oath as to whether it accepted Medicare and/or Medicaid during the relevant time period (i.e., January 29, 2013 through October 9, 2013). If so, Plaintiff shall state the amount that Medicare and/or Medicaid would have reimbursed the Plaintiff during the relevant time period for the CPT codes at issue in this case.

b. Plaintiff’s objections to Interrogatory #9 are overruled. Plaintiff shall provide a better answer. Specifically, Plaintiff shall identify all payors (e.g., Medicare, Medicaid, Worker’s Compensation, PPO, HMO, private insurance carriers, etc.) with whom Plaintiff had an agreement in effect from January 29, 2013 through October 9, 2013 relating to the amount Plaintiff would charge and/or accept as payment for the CPT codes at issue. Plaintiff shall identify the parties to the agreement, and the amount Plaintiff agreed to charge and/or accept as payment for the CPT codes at issue. Plaintiff may redact patient information to protect individual privacy concerns. To avoid disclosure of any trade secret or proprietary information, Plaintiff may utilize an alias such as HMO #1, PPO #1, etc. to describe the payor subject to the agreement.

c. Plaintiff’s objections to Interrogatory #11 are overruled. Plaintiff shall provide a better answer. Specifically, to the extent that Plaintiff received less than the amount billed for the CPT codes at issue in this case, Plaintiff shall state the amounts that Plaintiff was paid from any and all payors (e.g., Medicare, Medicaid, Worker’s Compensation, PPO, HMO, private insurance carriers, etc.) from January 29, 2013 through October 9, 2013.

d. Plaintiff s objections to Interrogatory #20 are overruled. Plaintiff shall provide a better answer. Specifically, Plaintiff shall provide its best estimate of the costs associated with providing the services at issue in this case during the relevant time period (i.e., January 29, 2013 through October 9, 2013), and the basis for said information.

3. “Defendant’s Motion to Determine the Sufficiency of Plaintiff’s Answers and to Compel Better Responses to Defendant’s First Request for Admissions” is Granted. Plaintiff shall provide better answers to #4 through 16 of Defendant’s First Request for Admissions.

4. Compliance with this order shall be completed within a period of sixty (60) days from the execution of this order.

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¹Fla. R. Civ. P. 1.280(c) allows a court, for good cause shown, to protect a party from annoyance, embarrassment, oppression, or undue burden or expense.