Pre-Litigation “Discovery” in PIP

In Shands Jacksonville Medical Center, Inc. v. State Farm Automobile Insurance Company,  40 FLW D1447a (Fla. 1st DCA June 22, 2015), the First District Court of Appeals ruled on the ways a PIP carrier can obtain information from PIP medical providers in Florida pre-litigation.

In this case, State Farm, sent a pre-litigation request to Shands pursuant to Florida Statute Section 627.736(6)(b) asking for: 1) copies of third-party contracts with medical insurers which contain negotiated discount rates; and 2) corporate representative depositions of Shands’ employee(s).

The 1st DCA rejected both of State Farm’s requests.  Regarding the insurance contracts, the 1st held:

[A]lthough the documents the trial court ordered may very well be relevant and discoverable in the context of litigation over the issue of reasonableness of charges instituted pursuant to subsection (5)(a), they are clearly not the types of documents specifically delineated by subsection (6)(b). Accordingly, State Farm was not entitled to these documents in a proceeding brought pursuant to subsection (6)(c). The trial court’s order compelling production of these documents was an abuse of discretion because it exceeded the bounds of subsections (6)(b) and (c).

In other words, pre-litigation, PIP carriers are only entitled to force medical providers to provide them with information about the insured.  PIP carriers are not entitled to force medical providers to provide the carrier with information about the medical provider.

With regard to the request for the corporate representative deposition, the Court first recognized that the Fourth DCA allows these types of pre-litigation depositions by PIP carriers.  However, the 1st rejected the 4th’s reasoning, stating:

We respectfully disagree with this reasoning and certify conflict with Kaminester. In our view, the phrase “discovery of facts” in subsection (6)(c) is limited to the production of the documents described in subsection (6). The process encompassed by subsections (6)(b) and (c) is meant to be a limited pre-litigation procedure for a PIP insurer to obtain specified information about the treatment provided to its insured and the charges for that treatment.

The discovery tools found in the rules of civil procedure, on the other hand, are not triggered until litigation over the reasonableness of those charges has ensued (i.e., commenced pursuant to subsection (5)(a)). Thus, nothing in subsections (6)(b) or (c) contemplates requiring a PIP medical provider to submit any of its representatives to deposition, and the trial court erred by ordering Shands to make a designated corporate representative available for deposition.

This decision will be welcome news to medical providers who are frequently requested to give pre-suit depositions, some of which can last for hours.  Trial courts in the 1st DCA must follow this decision, while trial courts in the 2nd, 3rd and 5th DCA’s can chose to follow the holding in this case, or the Kaminester decision from the 4th.

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