17 Fla. L. Weekly Supp. 170b
Online Reference: FLWSUPP 1703BOUCInsurance — Personal injury protection — Discovery — Medical records of nonparties — Statute requiring doctor performing peer review to maintain copies of all examination reports and payment records for past three years does not require doctor to produce reports and records — If production is required by statute, trial court erred in compelling discovery of medical records of nonparties who did not receive notice of disclosure
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. CHIROPRACTIC RADIOLOGY CONSULTANTS, P.A., a/a/o Mouna Bouchoutrouch, Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-058006 CACE 25. January 5, 2010. Counsel: Lara J. Edelstein, Miami. Roberts J. Bradford, Jr., Johnson City. Kathy Eikosidekas, Hialeah.
OPINION
(CAROL-LISA PHILLIPS, J.) THIS CAUSE came before the Court on Petition for Writ of Certiorari filed by Petitioner, United Automobile Insurance Company. The Court having considered same, having reviewed the applicable law and being otherwise duly advised in premises, finds and decides as follows:
In the underlying matter, Respondent (Plaintiff below) filed a complaint to recover personal injury protection (PIP) benefits pursuant to an assignment from Mouna Bouchoutrouch. Petitioner (Defendant below) filed its affirmative defenses asserting that the medical bills were not reasonable based on the opinion of Dr. Joseph A. Costello, Jr., who had performed the Peer Review in this case. Respondent served a subpoena duces tecum without deposition on Dr. Costello. The subpoena duces tecum requested copies of all IME reports and Peer Reviews that Dr. Costello had performed in the three years before the date of the last report prepared in the underlying case.
Petitioner moved the trial court for a protective order and/or to stay Respondent’s discovery request. In turn, Respondent filed a motion to compel Dr. Costello to provide the requested documents. On November 17, 2008, the trial court held a hearing on the pending matters and denied Petitioner’s motion for protective order and/or motion to stay discovery, and granted Respondent’s motion to compel and allowed Respondent access to Dr. Costello’s unredacted records, with directions for Dr. Costello to make the records available to Respondent and directed Respondent to accomplish the “redaction of all biologically identifying material.” This timely Petition followed.
When a petition for writ of certiorari is before the court, it must be reviewed to determine if the petitioner has made a showing that if certiorari is not granted, material injury resulting in irreparable harm will result. Bared & Co. v. McGuire, 670 So. 2d 153, 157 (Fla. 4th DCA 1996). For an appellate court to issue the writ or certiorari and quash the trial court’s order, the order must be a violation of clearly established law which, if upheld, would result in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000).
Respondent sought the records of the examining physician pursuant to section 627.736(7)(a), Florida Statutes, which provides, in part, as follows:
The physician preparing a report at the request of an insurer and physicians rendering expert opinions on behalf of persons claiming medical benefits for personal injury protection, or on behalf of an insured through an attorney or another entity, shall maintain, for at least 3 years, copies of all examination reports as medical records and shall maintain, for at least 3 years, records of all payments for the examinations and reports.
Petitioner argues that the fact that section 627.736(7)(a) requires a physician to maintain copies of all examination reports and records of all payments does not require the expert physician to produce the same or make them available for inspection. Respondent, in turn, argues that it would be quite useless for the legislature to consider and pass an amendment requiring PIP expert witness to maintain all PIP reports and payment histories and then expect the court to determine that the reports are undiscoverable.
The 2003 amendment to section 627.736(7)(a) was done so based on a legislative finding that some insurers had pressured or directed IME doctors to change reports favorable to the insurers. See Final Report of Select Committee on Automobile/P.I.P. Reform, S. 40-5, 5th Sess., at 3 (2003). Section 627.736(7)(a) specifically provides that “[n]either an insurer nor any person acting at the direction of or on behalf of an insurer may materially change an opinion in a report prepared under this paragraph or direct the physician preparing the report to change such opinion.” As such, the purpose of the amendment was not to accommodate discovery requests for the purpose of impeaching the expert witness, but instead, was enacted to improve IME reporting.
Even assuming this Court were to find that section 627.736(7)(a) does require an examining physician to produce for inspection the unredacted IME reports and Peer Reviews for the last three years, this Court would still be required to find that the order departs from the essential requirements of the law pursuant to the holding in Graham v. Dacheikh, 991 So. 2d 932 (Fla. 2d DCA 2008). There, an automobile negligence action, a medical examination was performed on one of the plaintiffs pursuant to Florida Rule of Civil Procedure 1.360. The plaintiffs sought extensive discovery from the examining physician, including a printout of any and all depositions given by the physician in 2004, 2005 and 2006; a list of cases at which the examining physician testified at trial for those years, and the person or entity who requested his presence at trial; and, copies of any written reports the examining physician wrote as a result of a compulsory medical examination pursuant to rule 1.360 for those years. The trial court compelled the examining physician to disclose reports from prior examinations of personal injury plaintiffs without notice to such nonparties and without adequate protection of their privacy rights.
On appeal, the Second District examined section 456.057(7)3., Florida Statutes, which governs when medical records may be furnished, as follows:
3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.
Accordingly, the Graham Court held that section 456.057(7)3., required proper notice to the nonparty patients, even if the indentifying information was redacted. In quashing the discovery order, the Second District found that the trial court departed from the essential requirements of the law and would cause irreparable injury to the privacy rights of nonparties by compelling medical records belonging to the nonparties who have been given no notice and had no opportunity to be heard in the proceeding.
Like here, Respondent is seeking from Dr. Costello, extensive unredacted medical records for the past three years for nonparties who did not receive notice of the disclosure and had no opportunity to be heard in the proceeding below. Thus, in compelling the discovery disclosures, the trial court has departed from the essential requirements of the law. See Graham, 991 So. 2d at 933; see also United Auto. Ins. Co. v. Complete Rehab & Med. Ctr. of Plantation, Inc.,. a/a/o Latrina Womack, Case No. 08-008328(08)(Fla. 17th Cir. Ct., April 23, 2009); United Auto. Ins. Co. v. Florida Wellness & Rehab. Ctr., a/a/o Barbara Jaramillo, Case No.: 09-007767 (04)(Fla. 17th Cir. Ct. August 27, 2009); United Auto. Ins. Co. v. West Broward Wellness Ctr., Inc., a/a/o Barbara Jaramillo, Case No. 09-007767 (04)(Fla. 17th Cir. Ct. August 27, 2009).
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED and the trial court’s November 17, 2008 discovery order is quashed.