17 Fla. L. Weekly Supp. 661a
Online Reference: FLWSUPP 1708ALIInsurance — Personal injury protection — Discovery — Depositions — Insurer may not inquire in deposition about CPT coding used by medical provider or identity of provider’s coding consultant — Insurer may not inquire about provider’s compliance with various administrative rules, regulatory statutes, licensing requirements and medical standards — Inquiry ends with determination that facility and treating physicians are properly licensed by state — Insurer may discover contractual rates provider accepted from insured’s health insurance carrier, but information will be deemed confidential — Treating physician is entitled to expert witness fee for deposition testimony
RAYMOND ALI, Plaintiff, vs. GLORIA M. MCCARTHY, Defendant. Circuit Court, 18th Judicial Circuit in and for Seminole County. Case No. 09-CA-4356-08 K. May 25, 2010. Clayton D. Simmons, Judge. Counsel: Kimberly P. Simoes, The Simoes Law Group, P.A., Deland. Sandy Heller, Fort Lauderdale. Michael Smith, Morgan & Morgan, P.A., Tavares.
ORDER ON NON-PARTY DEUK SPINE INSTITUTE,LLC AND ARA J. DEUKMEDJIAN M.D.’S MOTION FOR PROTECTIVE ORDER AND DEFENDANT’SMOTION TO COMPEL THE DEPOSITION OF TREATING PHYSICIAN WITHOUT EXPERT WITNESS FEE
THIS CAUSE came before the Court on March 17, 2010, for hearing on Defendant, Gloria M. McCarthy’s Motion to Compel Response and Motion to Compel the Deposition of Treating Physician Without Expert Witness Fee and on Non-Party, Deuk Spine Institute, LLC and Ara J. Deukmedjian, M.D.’s Motion for Protective Order as to Scope. This Court, having reviewed the court file and having heard argument and being otherwise advised in the premises, finds as follows:
BACKGROUND
This case arises out of a motor vehicle accident wherein the Plaintiff claims personal injuries as a result of the negligence of the Defendant. The Plaintiff sought and received medical care from Ara Deukmedjian, M.D. at the Deuk Spine Institute, LLC and is seeking to recover the medical expenses incurred at Deuk Spine Institute, LLC from the Defendant.
The Defendant noticed Ara Deukmedjian, M.D. for deposition duces tecum on February 16, 2010. The Defendant has objected to paying Dr. Deukmedjian an expert witness fee for his testimony, asserting that he is a treating physician and is not entitled to an expert witness fee pursuant to F.R.C.P. 1.390 (c).
The deposition of Dr. Deukmedjian went forward on February 16, 2010. During the course of the deposition the Defendant questioned Dr. Deukmedjian regarding the CPT coding that he used for the billing and the identification of a CPT coding consultant utilized by the practice. Counsel for Dr. Deukmedjian objected to this line of questioning and a motion for protective order was filed by Deuk Spine and a motion to compel was filed by the Defendant. The parties brought this matter before the Court for resolution as well as Deuk Spine’s additional request for a protective order as to the scope of any continuation of the deposition. The Court was also asked to resolve the issue of Dr. Deukmedjian’s entitlement to an expert witness fee for his testimony.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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. Allstate Insurance Co. v. Langston, 655 So. 2d 91 (Fla. 1995). The Fifth District Court of Appeals has held, “litigants are not entitled to carte blanche discovery of irrelevant material.’ ” Tanchel v. Shoemaker, 928 So.2d 440, 442 (Fla. 5th DCA 2006) (quoting Residence Inn by Marriott v. Cecile Resort, Ltd., 822 So.2d 548, 550 (Fla. 5th DCA 2002)).
First, the Defendant contends that she should be allowed to inquire into the CPT coding decisions of the Plaintiff’s treating physicians and urges that this information is admissible or could lead to the discovery of admissible evidence at the trial of this matter. Deuk Spine asserts that any inquiry into the facility’s CPT coding is irrelevant and the identification of Deuk Spine’s outside coding consultant is work product.
The Court agrees with Deuk Spine and grants the motion for protective order. The purpose of the trial is for the jury to determine (1) was the Plaintiff injured, (2) was the injury as a result of the accident and, (3) were the services provided to the Plaintiff reasonable and necessary as a result of the injury sustained. This Court finds that Deuk Spine’s utilization of a CPT code and the selection of a CPT code is irrelevant to any issue the jury will be asked to determine in this case. This Court will not allow the trial of this matter to turn into an audit of the medical provider’s bills and medical records. Furthermore, this Court will not condone the Defendant’s attempt to dissect the doctor’s records and billing as a defense to this personal injury action. The Court also grants Deuk Spine’s motion for protective order as to the identity of Deuk Spine’s CPT consultant.
Second, the Defendant contends that she should be allowed to inquire of Deuk Spine regarding its compliance with administrative codes, regulatory statutes, licensing requirements or medical record documentation statutes and urges that this information is relevant to the issues presented in this case. As an example, the Defendant suggested to the Court that the administrative law says that the medical provider’s post-operative report has to identify “every single thing that you did for this patient.” The Defendant suggests that Deuk Spine’s medical records are deficient and that she should be allowed to inquire into this alleged violation and that such information would be admissible at the trial of this matter to impeach the treating physician. In response, Deuk Spine asserts that this Defendant does not have standing to assert any alleged violations of any administrative code, regulatory statute, licensing requirements or medical record standards. Deuk Spine asserts that since the facility and all treating physicians hold a valid license issued by the State of Florida, the inquiry ends there.
Again, this Court agrees with Deuk Spine and grants the motion for protective order. As an initial matter, this 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.
Third, the Defendant contends that she should be allowed to discover the contractual rates accepted by Deuk Spine from the Plaintiff’s health insurance carrier. Deuk Spine asserts that this information is proprietary and not likely to lead to the discovery of admissible evidence at trial because health insurance was not billed in this instance. The Count finds that the contractual rates accepted by the treating physician are discoverable, but that the information is also confidential and proprietary. The Court denies Deuk Spine’s motion for protective order as to the contractual rates accepted, but orders that the production of the contractual rates be deemed confidential and shall not be shared with any party outside this case. Furthermore, all original copies of the contractual rates shall be returned to Deuk Spine at the conclusion of this case. By this ruling the Court is not making any finding as to the admissibility of this information at the trial of this matter.
The last issue to be resolved by the Court is whether Dr. Ara Deukmedjian is entitled to be paid an expert witness fee pursuant to F.R.C.P. 1.390. The Defendant asserts that a treating physician is a fact witness and is not a specially retained expert. Thus, the Defendant contends that Dr. Deukmedjian falls within the fact witness category and is not entitled to an expert witness fee for his testimony. Dr. Deukmedjian asserts that his only role in this case is as the treating physician of the Plaintiff, Raymond Ali. Dr. Deukmedjian has also provided the Court with a copy of his curriculum vitae which reflects that he is a Board Certified Neurological Surgeon. Last, Dr. Deukmedjian contends that there is no distinction under Rule 1.390 between a litigation retained expert and a treating physician. Thus, Dr. Deukmedjian believes he is entitled to an expert witness fee for his deposition testimony.
The Court finds that Dr. Deukmedjian is an expert and is entitled to an expert witness fee in this case. Florida Rule of Civil Procedure 1.390 controls compensation of experts and defines an expert as a person duly and regularly engaged in the practice of a profession who holds a professional degree and has specialized training or experience. Dr. Deukmedjian clearly falls within the parameters of Rule 1.390 and is entitled to an expert witness fee in this case. Furthermore, this Court recognizes that the public policy of the State of Florida requires that treating physicians be compensated for their time. As this Court is aware, there are doctors that refuse to treat injured individuals because they do not want to become involved in the litigation process. Many doctors do not want to have to go to Court, do not want to be deposed and are otherwise unwilling to participate in the legal process. It is necessary that injured persons be able to find competent physicians to treat their injuries. Therefore, due to the dearth of reputable doctors that are willing to treat accident victims, the public policy requires that these doctors be compensated for their time. The Defendant shall have ten (10) days from the date of this Order to pay Dr. Deukmedjian an expert fee for his testimony on February 16, 2010.