12 Fla. L. Weekly Supp. 363a
Insurance — Personal injury protection — Discovery — Documents — Independent medical examination reports and payment records — IME physician’s request for compensation for compliance with discovery request for all IME reports provided to any insurer within past two years is denied despite claim that, because physician mixes files of his patients and IME cases in alphabetical filing system, it would be unduly burdensome to pull all files to determine if it is file of regular patient of IME referral and then copy and redact each applicable record — Physician is ordered to provide IME reports and payment records at reimbursement of $1 per page copied and $1 per year researched — Plaintiff is ordered to keep records confidential and redact any records used at trial
GINA MELOSKIE, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Escambia County. Case No. 2003 SC 004370, Division 5. January 31, 2005. Patricia A. Kinsey, Judge. Counsel: Robert N. Heath, Jr., for Plaintiff. Craig B. Morris, Daniell, Upton, Perry & Morris, P.C., Daphne, AL, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO COMPEL
At a hearing in open court on January 28, 2005, Dr. D. J. Jeserski appeared telephonically while plaintiff appeared through counsel. Dr. Jeserski performed an IME exam on plaintiff at the request of the defendant and recommended that her PIP benefits be discontinued. Plaintiff moves to compel Dr. Jeserski to provide copies of any IME reports he submitted to any and all insurance providers from October 1, 2003, through the present, as well as the applicable financial records for 2001-2004. Plaintiff relies on §627.736(7), Florida Statutes, which provides that physicians who render expert opinions in PIP cases shall maintain records of all examination reports and records of all payments for these examinations for a period of at least three years.
Dr. Jeserski, who provides IME reports for various PIP providers, testified that he maintains all his medical records for at least five years. Unfortunately, he made the decision to keep the records of his patients and his IME cases mixed together in an alphabetical filing system. He now argues that it would be unduly burdensome for him to pull each file, decide if it is his regular patient or an IME referral and then copy and redact each applicable record. He does not refuse to provide these copies — he merely asks for compensation at the rate of $20.00/hour for two or three people to review his records, redact as necessary, and make copies. He anticipates between $5,000.00 and $10,000.00 would cover his expenses and he wishes a $5,000.00 deposit before he starts pulling files.
Plaintiff argues that HIPAA makes an exception for records produced under court order which eliminates the need for Dr. Jeserski to spend time redacting each record. Plaintiff also argues that it is unfortunate that Dr. Jeserski decided to mix his files alphabetically, but that his client should not be made to bear the financial burden of Dr. Jeserski’s decision.
ORDERED AND ADJUDGED that Dr. Jeserski shall provide plaintiff’s counsel with a copy of all IME reports provided to any and all insurance providers directly or through any third party vendor beginning October 1, 2003, through the present date, within thirty days from the date of this order. Failure to provide these records may result in the court’s order that Dr. Jeserski be removed from defendant’s witness list.
FURTHER ORDERED that Dr. Jeserski shall provide payment records for any and all IME examinations provided to any and all insurance providers directly or through any third party vendor for the years 2001, 2002, 2003 and 2004, within thirty days from the date of this order. Failure to provide these records may result in the court’s order that Dr. Jeserski be removed from defendant’s witness list.
FURTHER ORDERED that Dr. Jeserski shall be entitled to reimbursement of $1.00 per page of any copies made pursuant to §395.3025(1), Florida Statutes, plus $1.00 per year for each year researched, plus postage to comply with this order.
FURTHER ORDERED that plaintiff shall keep confidential the records provided and in the event these records are used at trial, shall appropriately redact the records used.
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[Editor’s note: See 12 Fla. L. Weekly Supp. 767a.]