unreaSonablepriCingdiSCoveryinperSonalinJuryCaSeS
Appellate practice Section
Chairs:JoeEagleton–BrannockHumphries&BermanandChanceLyman–BuchananIngersoll&Rooney
theprimary
elementof
damagesis
medicalexpenses.
There are three distinct
types of discovery
available to the defense
regarding medical
provider witnesses in personal
injury cases: (1) unreasonable
pricing discovery; (2) Elkins/Rule
1.280(b)(5)(A) “litigation bias”
discovery; and (3) Boecher
“relationship bias” discovery. 1
This article focuses on the first
category. Unlike the two forms of
bias discovery, unreasonable pricing
discovery relates to a material issue
that goes to the heart of a personal
injury case — damages.
In Giacalone v. Helen Ellis
Mem’l Hosp. Found., Inc., the
Second District Court of Appeal
adopted a federal case authorizing
discovery of three kinds of
evidence relevant to the
determination of a claim of
unreasonable pricing. These are
(1) the relevant market for services,
(2) the usual and customary rate
that the provider charges and
receives for its services, and (3) the
provider’s internal cost structure. 2
Giacalone itself was not a
personal injury case. It was a
collections suit by a medical
provider, and the patient’s defense
was unreasonable pricing. In
personal injury cases, however, as
in collections suits by medical
providers, the primary element
of damages is medical expenses. 3
Defendants in personal injury
cases, like patients defending
collections suits by medical
providers, are not required to pay
whatever bills medical providers
charge. 4 Instead, defendants have
to pay only reasonable medical
expenses. 5 It is the plaintiff ’s
burden to prove the reasonableness
of medical bills. 6
Accordingly, in Gulfcoast Surgery
Ctr., Inc. v. Fisher, 7 the Second
District stated that the Giacalone
unreasonable pricing discovery
standard applies to personal injury
cases — where the patient-plaintiff ’s
medical providers are non-parties
and the defendant is conducting
non-party discovery on those
medical providers. Numerous other
decisions from multiple courts,
including the Florida Supreme
Court in dicta, have stated that
defendants in personal injury
cases are permitted to conduct
unreasonable pricing discovery
on non-party medical providers
regarding the patient-plaintiff ’s
medical bills. 8 n
1
See Fla. Handbook on Civ.
Discovery Prac., Ch. 6.
2
8 So. 3d 1232, 1235 (Fla. 2d DCA
2009 (citing Colomar v. Mercy Hosp. Inc.,
461 F. Supp. 2d 1265 (S.D. Fla. 2006)).
3
See Fla. Std. Jury Instr.-Civ. 501.2
& 501.3.
4
See Columbia Hosp. (Palm Beaches)
Ltd. P’ship v. Hasson, 33 So. 3d 148,
150 (Fla. 4th DCA 2010); Albertson’s,
Inc. v. Brady, 475 So. 2d 986, 988
(Fla. 2d DCA 1985).
5
See Fla. Std. Jury Instr.-Civ.
501.2(b).
6
See Brady, 475 So. 2d at 988;
USAA Cas. Ins. Co. v. Shelton, 932
So. 2d 605, 608 (Fla. 2d DCA 2006).
7
107 So. 3d 493, 495 (Fla. 2d
DCA 2013).
8
See, e.g., Worley v. C. Fla. YMCA,
228 So. 3d 18, 24 (Fla. 2017); Lake
Worth Surgical Ctr., Inc. v. Gates, 266
So. 3d 198, 201 (Fla. 4th DCA 2019);
Laser Spine Institute, LLC v. Makanast,
69 So. 3d 1045, 1046 (Fla. 2d DCA
2011); Katzman, M.D. v. Rediron
Fabrication, Inc., 76 So. 3d 1060, 1064
(Fla. 4th DCA
2011); Hasson,
33 So. 3d at 150.
Author:
Aaron Proulx -
Smoak,
Chistolini &
Barnett, PLLC
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