9 Fla. L. Weekly Supp. 783a
Insurance — Personal injury protection — Discovery — Insured’s subpoena for deposition duces tecum of third-party vendor that coordinated and scheduled the independent medical examination upon which insurer relied in denying claim, requesting entire PIP file provided by insurer for scheduling the IME, is limited — IME vendor is compelled to produce documents regarding conduct of IME; amount paid by insurer for IME and amount paid to IME physician; tax forms with respect to IME physician for past three tax years; every IME report, peer review report, and any other report from IME physician for past three calendar years; and any documents indicating vendor called on IME physician’s services even if physician never conducted IME or peer review due to a no-show — Vendor not required to produce all documents signed by IME physician and price lists for scheduling IMEs, peer reviews, and records reviews
LENNY GERMAIN, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 02 CC 1243 20 U. September 24, 2002. Donald L. Marblestone, Judge. Counsel: Alexander Billias, Morgan, Colling & Gilbert, P.A., Orlando, for Plaintiff. Brian K. McClain, Orlando, for Nexucon. Chandra Miller, St. Petersburg, for Defendant.
ORDER ON NEXUCON’S MOTION FORPROTECTIVE ORDER
This matter having come before the Court on September 12, 2002 on NEXUCON’s Motion for Protective Order, (certificate date August 20, 2002), the Court having reviewed the heard argument of counsel and being fully advised in the premises finds as follows:
PROCEDURAL BACKGROUND
1. This is a claim for personal injury protection benefits arising out of an automobile accident that occurred on January 8, 2001.
2. Defendant relied upon an independent medical examination conducted by Norman H. Brodsky, D.C., to deny payment for the medical bills at issue in this litigation.
3. NEXUCON was the third-party vendor that coordinated and scheduled the independent medical examination at the request of Defendant.
4. On July 3, 2002, Plaintiff served its Subpoena for Deposition Duces Tecum on NEXUCON.
5. In response, NEXUCON filed its Motion for Protective Order on August 20, 2002.FACTS
6. In its Subpoena for Deposition Duces Tecum, Plaintiff requested the following:
The entire Personal Injury Protection file that was provided to you by Defendant, (or anyone on Defendant’s behalf), for the purpose of scheduling an Independent Medical Examination of Plaintiff, cover to cover, including original jackets and everything contained within the file, including but not limited to:
(a) Any and all documents, correspondence, notes, faxes, medical records, billing statements, reports, memoranda, charts, x-rays, MRIs, etc., regarding the scheduling of the Independent Medical Examination of Plaintiff.
(b) Any and all documents, correspondence, notes, faxes, medical records, billing statements, reports, memoranda, e-mail messages, charts, x-rays, MRIs, etc., regarding the Independent Medical Examination of Plaintiff.
(c) Any and all documents, correspondence, notes, faxes, medical records, billing statements, reports, memoranda, etc., regarding the preparation and drafting of the Independent Medical Examination Report and/or Addendum(s) of Plaintiff.
(d) Any and all documents, including but not limited to, correspondence, notes, faxes, memoranda, e-mail messages, phone messages, reports, directives, etc., that you have been provided by Defendant, or anyone on behalf of Defendant, regarding the suggested or recommended format, length, form, substance, content, appearance, organization, etc., of Independent Medical Examination Reports and Addendums.
(e) Any and all documents, including but not limited to, correspondence, notes, faxes, memoranda, e-mail messages, phone messages, reports, directives, etc., regarding the suggested or recommended format, length, form, substance, content, appearance, organization, etc., of Independent Medical Examination Reports and Addendums, that you have provided to the doctor who conducted the Independent Medical Examination of Plaintiff.
(f) Any and all wage and compensation records for the prior three (3) years, including but not limited to W-2 forms, regarding the compensation you have provided the doctor who conducted the Independent Medical Examination of Plaintiff.
(g) Any and all scheduling records for the prior three (3) years, regarding amount or number of Independent Medical Examinations that have been conducted by the doctor who conducted the Independent Medical Examination of Plaintiff.
(h) Copies of any and all Independent Medical Examination Reports and/or Addendums by the doctor who examined Plaintiff, with patients’ name redacted to protect patient confidentiality.
(i) Any and all contracts between you and the doctor who conducted the Independent Medical Examination of Plaintiff.
(j) Any and all documents, including but not limited to, correspondence, notes, faxes, memoranda, reports, directives, etc., that were signed by the doctor who conducted the Independent Medical Examination of Plaintiff.
(k) The entire file that you provided to the doctor who conducted the Independent Medical Examination of Plaintiff, cover to cover, including original jackets and everything contained within the file.
(l) Any and all price lists for scheduling Independent Medical Examinations, Peer Reviews, and/or Records Reviews that you or your company generated, maintained, and/or utilized.
(m) The entire amount you or your company paid the doctor who conducted the Independent Medical Examination of Plaintiff.
(n) The entire amount you or your company charged Plaintiff’s insurer for scheduling the Independent Medical Examination, Peer Review, and/or Records Review of Plaintiff.
LAW AND ANALYSIS
It is hereby ORDERED and ADJUDGED that:
7. NEXUCON shall produce any and all documents, (to include correspondence, notes, faxes, medical records, reports, memoranda, charts, x-rays, MRIs, and the like), that it possesses with respect to the independent medical examination conducted by Norman H. Brodsky, D.C., in this litigation.
8. NEXUCON shall produce any and all documents or notes that indicate the amount paid by Progressive Express Insurance Company for said independent medical examination, and the amount of money paid to Norman H. Brodsky, D.C. for his services in conducting the subject independent medical examination.
9. NEXUCON shall produce any and all 1099 tax forms it possesses with respect to Norman H. Brodsky, D.C. for the tax years 1999, 2000, and 2001.
10. NEXUCON shall produce each and every independent medical examination report, peer review report, and any other such report it has in its possession from Norman H. Brodsky, D.C. for the calendar years 2000, 2001, and 2002. In addition, NEXUCON shall provide any and all documents it possesses which would indicate it called upon the services of Dr. Brodsky, even if Dr. Brodsky never ultimately conducted an independent medical examination or peer review, (i.e. documents indicating “no-shows”). Plaintiff shall tender reasonable compensation to NEXUCON for the time NEXUCON reasonable expends in compiling the records and reports with respect to its utilization of Dr. Brodsky in the calendar years 2000, 2001, and 2002. If Plaintiff and NEXUCON are unable to agree upon the amount of said reasonable compensation, either party may set this matter for a hearing and this Court retains jurisdiction to rule on this issue. Such reasonable cost shall be a taxable cost if Plaintiff prevails in this litigation.
11. Counsel for NEXUCON has represented to this Court that NEXUCON does not currently possess any documents that would be responsive to paragraphs (d), (e), and (i) of Plaintiff’s Subpoena Duces Tecum.
12. Accordingly, with the exception of the foregoing, NEXUCON is not required to provide any other documents responsive to Plaintiff’s Subpoena Duces Tecum.
13. NEXUCON shall produce all documents Ordered herein at the deposition of the person with the most knowledge from NEXUCON, which is scheduled to take place at 9:30 a.m. on September 26, 2002.
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