THUY TRANG THI NGUYEN ET AL VS MICHELLE D TAYLOR ET AL

Tentative Rulings

Case Number: BC646362    Hearing Date: November 08, 2019    Dept: 4B

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO QUASH DEPOSITION SUBPOENA TO FARDAD MOBIN, M.D.

On January 10, 2017, plaintiffs Thuy Trang Thi Nguyen (“Plaintiff”), Kaitlin Nguyen, by and through her guardian ad litem Thuy Trang Thi Nguyen, and Tyler Nguyen filed this action against defendants Michelle D. Taylor, City of Los Angeles Transit Services, Los Angeles County Metropolitan Transportation Authority. Plaintiff was involved in an automobile collision with a bus operated by MV Transportation, Inc. (named as Doe 1), driven by MV employee, Michelle Taylor.

Defendants served a notice of deposition of the person most qualified (“PMQ”) at Fardad Mobin, M.D.’s office on July 10, 2019, with a deposition subpoena for the production of documents. The notice of deposition identifies 24 categories of testimony regarding various policies and practices, including for medical billing, negotiating charges, and collection of payments; rates accepted for various treatment over the last five years; and assorted agreements with insurance providers for billing rates. The deposition subpoena sought 193 categories of documents.

After meeting and conferring, Defendants served a second notice of deposition for the PMQ for Dr. Mobin’s office identifying 24 categories of testimony and 49 requests for production. Plaintiff seeks to quash this subpoena.

The court “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .” (Code Civ. Proc., §2020.410, subd. (a).)

Plaintiff argues the subpoena is improper because Dr. Mobin is a retained expert. However, he also treated Plaintiff after the accident and therefore has percipient knowledge about his injuries and the amounts his office charged to treat those injuries.

Deposition Topics On Policies And Procedures

Plaintiff objected that the deposition topics concerning the office’s policies and procedures related to billing, rates, and collections are overbroad, are not relevant or reasonably calculated to lead to the discovery of admissible evidence, and violate the privacy rights of other patients. Defendants contend the information goes to the reasonableness of the rates Dr. Mobin charged Plaintiff.

The information on the doctor’s policies and procedures potentially could be relevant the reasonableness of the rates he charged Plaintiff. Because these topics ask only about policies and procedures, and not about specific other patients, the topics do not violate the privacy rights of other patients and are not overly broad and burdensome. Accordingly, the motion to quash is DENIED regarding the deposition topics on policies and procedures (Topic Nos. 1-3, 19-22, 24).

Deposition Topics and Documents On Rates And Agreements

Plaintiff objected that the deposition topics and document requests concerning rates charged for other patients for particular procedures in the last five years and agreements with insurance companies and Medicare are overbroad, are not relevant or reasonably calculated to lead to the discovery of admissible evidence, and violate the privacy rights of other patients. (Plaintiff made the exact same objection to each topic and request.) Plaintiff contends that the rates Dr. Mobin accepted are affected by multiple factors such as the patient’s insurance plan, the nature and complexity of the injury and surgery, and the patient’s economic situation.

Case law is clear that billed amounts and charged rates are not evidence alone of the reasonable value or cost of the services provided. (Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1337.) The measures of the reasonable value or cost of a treatment are different for insured and uninsured patients (as Plaintiff is considered here because she treated on a lien). The case law does “not suggest uninsured plaintiffs are limited in their measure of recovery to the typical amount incurred by an insured plaintiff, or, for that matter, the typical amount incurred by any other category of plaintiff.” (Id. at p. 1329.) Indeed, different cases involving the same injury may result in different medical expenses. “There is, to be sure, an element of fortuity to the compensatory damages the defendant pays . . . . A tortfeasor who injuries a member of a managed care organization may pay less in compensation for medical expenses than one who inflicts the same injury on an uninsured person treated at a hospital . . . .” (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 566.)

In light of this case law, Defendant does not explain how the requested information about amounts charged to other patients, who may or may not have paid those amounts and may or may not be insured, bears on the reasonableness of Plaintiff’s charges. Nor does Defendant cite any authority that what a different patient was charged or paid can be evidence of the reasonableness of another person’s bills.

The topics and documents seeking information on rates charged to particular patients for various procedures for the last three or five years are overly broad and burdensome given the tangential, if any relevance, to the issue of the reasonable rate for Plaintiff’s treatment. Obtaining the requested information for the last several years and redacting patient identifying information is likely to be time-consuming. Defendants do not explain how the rate charged to or paid by third parties, in different circumstances with different insurance plans or financial prospects, informs the reasonableness of the rate charged to Plaintiff. For example, a doctor may agree to accept less than the full amount billed because a particular patient has declared bankruptcy or will never work again and is unlikely ever to pay the full bill. Likewise, Defendants do not explain how the fact that a particular insurance company negotiated particular rates for various treatments bears on the reasonableness of the rate charged to Plaintiff. For example, an insurance company may negotiate a lower rate for certain treatments in exchange for a higher rate for other treatments.

The motion to quash is GRANTED as to Topic Nos. 4-18 and Request Nos. 2-46.

Deposition Topic On Medical Bill Coding

This topic is overbroad because it is vague. The request does not explain what aspect of the topic of “medical bill coding” is at issue and potentially relevant or calculated to lead to the discovery of admissible evidence. Therefore the motion to quash this topic is GRANTED.

Other Requests

Request No. 1 asks for all documents reflecting billings, time slips, and work logs for Plaintiff’s treatment. These documents are directly relevant to Plaintiff’s treatment and the charges for the treatment. The motion to quash this topic is DENIED.

Request Nos. 47-49 ask for all documents reflecting agreements, communications, and correspondence between Plaintiff’s attorney and Dr. Mobin relating to Plaintiff. Plaintiff asserted the same objections as she did to all the other requests – that the requests are overbroad, not relevant or reasonably calculated to lead to the discovery of admissible evidence and violate the privacy rights of other patients. These objections are not well-taken. The requests are specific to Plaintiff and do not ask for information about any other patients. The documents are likely to be about the issues in dispute in this case. Plaintiff does not give any other reason why her attorney and the doctor would be communicating about her. The motion to quash these requests is DENIED.

The request for sanctions is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.