SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

Plaintiff Mary Augusta Hudson (“Plaintiff”) filed this action against Defendants Brinker International, Inc. (“Brinker”) and Haagen Company, LLC, (collectively, “Defendants”) for negligence and premises liability.  Plaintiff allegedly tripped and fell over a parking curb/stop in a parking lot.  

On December 12, 2022, Brinker served a Notice of Deposition and Deposition Subpoena for Production of Business Records upon the Person Most Knowledgeable (“PMK”) of non-party Bay Surgery Center (“Bay City”). Brinker filed this motion to compel Bay City to produce records related to other patients in terms of payments and procedures that are the same as those received by Plaintiff. Brinker also requests monetary sanctions. Bay City opposes the motion, and Brinker filed a reply. 

 

2. Motion to Compel Compliance  

The service of a deposition notice, pursuant to CCP § 2025.240, is effective to require any party deponent to attend, testify, and produce materials for inspection at a deposition.  (CCP § 2025.280(a).)  To require the attendance and testimony of a non-party deponent, as well as his or her production of any document or tangible thing for inspection and copying, the party seeking discovery must serve on that deponent a deposition subpoena, pursuant CCP § 2020.010, et seq.  (CCP §§ 2020.010(b), 2025.280(b); See also Sears, Roebuck & Co. v. National Union Fire Insurance Company of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by CCP §§ 2020.010, et seq., and is primarily carried out by way of subpoena].)   

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production.  (CCP § 2025.480(a).)  If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.  (CCP § 2025.480(i).)   

When compelled disclosure intrudes on constitutionally protected areas, it cannot be justified solely on the ground that it may lead to relevant information, rather, the compelled disclosure must be directly relevant.  (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525.)  Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a “careful balancing” of the “compelling public need” for discovery against the “fundamental right of privacy.”  (Ibid.) 

The Court must carefully balance the right of privacy against the need for disclosure.  (Britt v. Superior Court (1978) 20 Cal.3d 844, 855-56; see also  John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199.)  The ascertainment of the truth in connection with legal proceedings is a compelling state interest.  (Britt v. Superior Court (1978) 20 Cal.3d 844, 857.)  In balancing the divergent interests, the court considers the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure, and the availability of the alternative, less intrusive means for obtaining the requested information.  (Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1005.)  The more sensitive the nature of the personal information that is sought, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted.  (Id. at 1004.) 

 

In this case, on January 18, 2023, Andrew Morris appeared for deposition as non-party Bay City’s PMK. Bay City produced documents pertaining to Plaintiff, but did not produce the billing records and other information related to other patients. Brinker seeks these documents because they seek information as to customary payment received for the same procedures provided to Plaintiff, namely shoulder arthroscopy surgery and PRP injections.  

 

More specifically, Bay City did not provide documents to the following requests: 

 

6. Documents constituting, evidencing, or referring to the customary charges, and customary payments received or reimbursement rate averages for the following procedures: arthroscopy, shoulder, rotator cuff surgery; arthroscopy, shoulder, surg, debride; arthroscopy, shoulder, surg, decomp; and Sho Arthris Surgery Compl Syn vct; and platelet rich plasma injections, for the past five years  

 

7. Documents constituting, evidencing, or referring to the customary charges, and customary payments received or reimbursement rate averages for arthroscopy shoulder surgeries, including but not limited to arthroscopy shoulder rotator surgeries, for the past five years. 

 

8. Documents constituting, evidencing, or referring to payments received for comparable services as those rendered to Marcy Hudson, for arthroscopy shoulder surgeries, including but not limited to arthroscopy shoulder rotator surgeries, and platelet rich plasma injections, for the past 5 years, with patient names redacted. 

 

9. Documents evidencing, referring to, or constituting the average amount Bay City Surgery Center, and or David Eldringhoff, M.D. and/or any of its/his/their affiliated company have received or was reimbursed within the last 5 years for comparable medical services as those rendered to Mary Hudson, through (a) Cash Patients; (b) Medi-Care/MediCal; (c) Worker's Compensation; (d) Third Party Insurance; (e) Lien Patients. 

(Mot. Decl. Kim; Exh. A.) 

 

Plaintiff underwent shoulder arthroscopy surgery and platelet-rich plasma (“PRP”) injections at Bay City for approximately $195,000. Brinker contends that information of Bay City’s customary billing practices and payments received from other patients for the same treatment provided to Plaintiff is crucial to Brinker’s determination of reasonableness of Plaintiff’s damages.  

In opposition, Bay City contends that Brinker seeks confidential financial information of third parties, which are irrelevant to the reasonable value of Plaintiff’s medical services. Further, Bay City argues that its fee schedules are a trade secret, and infringes upon Bay City’s right to financial privacy. Bay City avers that it treats patients on a lien basis and sells the liens to various entities pursuant to contracts, and that this information is not publicly disclosable. Further, Bay City contends that its fee schedules have no bearing as to Plaintiff, because Plaintiff is obligated to pay the full amount of the bills for medical services rendered by Bay City regardless of the outcome in this action. 

In reply, Brinker contends that it is only seeking information and documents related to Bay City’s customary charges and customary payments received for specific medical procedures that Plaintiff received, and that the other patients’ private information can be redacted. 

“When the interest of a private litigant in discovering relevant facts conflicts with the right of others to maintain reasonable privacy regarding their financial affairs, a court must indulge in a careful balancing before ordering disclosure.” (Allen v. Superior Court (1984) 151 Cal.3d 447, 453 [citing Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657.) A court “must not generously order disclosure of the private financial affairs of nonparties without a careful scrutiny of the real needs of the litigant who seeks discovery.” (Ibid.) 

Additionally, 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.) 

Furthermore, the topics and documents seeking information on rates charged to particular patients for various procedures for the last 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 and overburdensome.  Further, Brinker does not explain how the rate charged to or paid by third parties, who may or may not be similarly situated with different circumstances or financial prospects, bears on the reasonableness of the rate charged to Plaintiff.  Likewise, Brinker does not explain how the average amount Bay City receives or is reimbursed for comparable services through other patients, Medi-Care/MediCal, worker’s compensation, third party insurance, and lien patients informs upon the reasonable rate for Plaintiff’s treatment, especially as these entities likely negotiated particular rates for particular treatments. For example, an insurance company may negotiate a lower rate for certain treatments in exchange for a higher rate for other treatments.  

Lastly, Brinker does not explain how the information sought or substantially equivalent information cannot be obtained through other less intrusive means. Brinker contends that this discovery is geared towards determining the reasonable value of the medical services provided to Plaintiff.  However, to that end, Brinker can retain a billing expert to opine on the reasonable value of those services. 

Accordingly, Brinker’s motion is DENIED. Brinker’s request for monetary sanctions is similarly denied.   

 

Moving party is ordered to give notice.   

 

 

Dated this 14th day of August 2023