108 So.3d 570 (Fla. 2012), SC10-1361, Hasan v. Garvar

Docket Nº:SC10-1361.
Citation:108 So.3d 570, 37 Fla. L. Weekly S 769
Opinion Judge:LEWIS, J.
Party Name:Ramsey HASAN, Petitioner, v. Lanny GARVAR, D.M.D., et al., Respondents.
Attorney:James Curtis Blecke of The Haggard Law Firm, P.A., Coral Gables, FL, and Paul Freedman of Kaplan and Freedman, P.A., Miami, FL, for Petitioner. Robert C. Weill and Douglas Malcolm McIntosh of McIntosh, Sawran, Peltz & Cartaya, P.A., Fort Lauderdale, FL, for Respondents. Andrew Steven Bolin of Bey...
Judge Panel:PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur. POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs. POLSTON, C.J., dissenting. CANADY, J., concurs.
Case Date:December 20, 2012
Court:Supreme Court of Florida

Page 570

108 So.3d 570 (Fla. 2012)

37 Fla. L. Weekly S 769

Ramsey HASAN, Petitioner,

v.

Lanny GARVAR, D.M.D., et al., Respondents.

No. SC10-1361.

Supreme Court of Florida.

December 20, 2012

James Curtis Blecke of The Haggard Law Firm, P.A., Coral Gables, FL, and Paul Freedman of Kaplan and Freedman, P.A., Miami, FL, for Petitioner.

Robert C. Weill and Douglas Malcolm McIntosh of McIntosh, Sawran, Peltz & Cartaya, P.A., Fort Lauderdale, FL, for Respondents.

Andrew Steven Bolin of Beytin, Bolin, McLaughlin & Willers, P.A., Tampa, FL, for Amicus Curiae The Florida Defense Lawyer's Association.

Page 571

Kenneth William Morgan, Jr., Donna Marie Krusbe and Scott Clark Cochran of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., Fort Lauderdale, FL, for Amicus Curiae Jennifer Schaumberg, D.M.D.

LEWIS, J.

Ramsey Hasan seeks review of the decision of the Fourth District Court of Appeal in Hasan v. Garvar, 34 So.3d 785 (Fla. 4th DCA 2010), on the basis that it expressly and directly conflicts with the decision of this Court in Acosta v. Richter, 671 So.2d 149 (Fla.1996), as well as decisions of the First District Court of Appeal in Dannemann v. Shands Teaching Hospital & Clinics, Inc., 14 So.3d 246 (Fla. 1st DCA 2009) cert. denied, __ U.S. __, 130 S.Ct. 2061, 176 L.Ed.2d 429 (2010), and Hannon v. Roper, 945 So.2d 534 (Fla. 1st DCA 2006), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

Ramsey Hasan filed a medical malpractice action against Lanny Garvar, D.M.D., and his dental practice. Hasan alleges that Garvar's failure to diagnose and treat his dental conditions resulted in a bone infection and a worsening of his dental problems, which caused severe and permanent physical and emotional damage. Specifically, Hasan contends that he suffered and continues to suffer physical and mental pain, grief, anguish, an inability to lead a normal life, permanent disfigurement, and permanent aggravation of a preexisting condition. Hasan claims that he has been forced to pay additional dental bills plus other expenses related to his injuries.

After receiving treatment from Garvar, Hasan sought medical treatment from Jennifer Schaumberg, D.M.D., an oral and maxillofacial surgeon. Garvar acknowledges that a physician-patient relationship existed between Hasan and Schaumberg. While in the process of scheduling Schaumberg's deposition in this action in connection with her treatment of Hasan, Hasan learned that OMS National Insurance Company (OMSNIC) had retained an attorney to consult with Schaumberg and to conduct an ex parte private predeposition conference with Schaumberg. Schaumberg is not a party in any underlying malpractice action against Garvar.

OMSNIC insures Garvar. OMSNIC also insures Schaumberg. OMSNIC had previously retained an attorney to represent Garvar in the action Hasan filed against him. Originally, distinct law firms represented Schaumberg and Garvar on behalf of OMSNIC. At some point, however, the attorney retained by the insurance company for Schaumberg joined the law firm representing Garvar. Thereafter, OMSNIC retained another law firm to represent Schaumberg. Although different attorneys represent Garvar and Schaumberg, OMSNIC selected, retained, and paid for both attorneys.

When Hasan became aware that OMSNIC had selected and paid for an attorney to meet with Schaumberg, Hasan moved for a protective order to prohibit the ex parte predeposition conference between Schaumberg and the attorney provided by OMSNIC. The trial court denied Hasan's motion, and, after writing a full opinion approving the trial court's action, the Fourth District Court of Appeal denied Hasan's petition for a writ of certiorari. Hasan, 34 So.3d at 786-87. According to the Fourth District, the ex parte conference was permissible because the trial court's order contained a provision to prohibit Schaumberg and her insurer-provided attorney from discussing privileged medical information pertaining to Hasan, and because Schaumberg was meeting with the attorney assigned to her by

Page 572

OMSNIC, not the attorney assigned to Garvar. Id. at 787. The Fourth District acknowledged that this Court has explicitly prohibited ex parte meetings between nonparty treating physicians such as Schaumberg and the defendant's attorney since the Florida Legislature adopted a physician-patient confidentiality statute for patient medical information in 1988. Id.

Hasan contends that an ex parte predeposition conference between a nonparty treating physician, here Schaumberg, and an attorney who is selected and hired by the defendant's insurance company violates the protections afforded by this State's physician-patient confidentiality statute as delineated in section 456.057(8), Florida Statutes (2009), and leaves him without protection from disclosure of information. The statute provides, in pertinent part:

Except in a medical negligence action or administrative proceeding when a health care practitioner or provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

§ 456.057(8), Fla. Stat. (2009) (emphasis supplied).

Hasan asserts that this section, coupled with relevant precedent addressing physician-patient confidentiality, prohibits an ex parte conference between a treating nonparty physician and the attorney assigned to the nonparty-physician in this case. Hasan contends that ex parte conferences are prohibited even if there is a verbal representation not to discuss privileged information— in other words, matters related to the patient. Garvar, in contrast, contends that section 456.057(8) and current precedent do not prohibit an ex parte meeting between a nonparty physician and counsel provided by the insurance company even though it is agreed that the nonparty treating physician will not be a defendant. Garvar alleges that to prohibit an ex parte meeting between a nonparty treating physician and counsel provided by the insurance company would violate the physician's common law right to counsel and First Amendment right to freedom of speech.

ANALYSIS

At issue here is whether the patient confidentiality statute prohibits a nonparty treating physician from having an ex parte meeting with an attorney selected and provided by the defendant's insurance company. We hold that the physician-patient confidentiality statute, section 456.057, prohibits such meetings and we quash the decision of the Fourth District. Given the broad protections afforded to patient information by the relevant confidentiality statute, and the equally protective judicial precedent with regard to this statute and information, we again hold that an ex parte meeting such as the one attempted here is prohibited irrespective of whether the attorney and physician claim they will discuss only non-privileged matters.

The History of Section 456.057

The history behind section 456.057 provides the foundation for our ruling that an ex parte meeting between a plaintiff's nonparty treating physician and counsel selected and provided by the defendant's insurer is prohibited. In Coralluzzo v. Fass, this Court held that no statutory or common law rule prohibited ex parte communications between defense counsel or

Page 573

their representatives and a nonparty treating physician. 450 So.2d 858, 859 (Fla.1984). In that case, defense counsel arranged to meet ex parte with the plaintiff's subsequent treating oral surgeon, which the plaintiff, upon learning of the pending meeting, sought to prevent. Id. at 858-59. The Court in Coralluzzo held that it could not prevent the ex parte meeting because no statutory privilege existed for the physician-patient relationship which prohibited such activity. Id. at 859 (stating that " no evidentiary rule of physician/patient confidentiality exists in Florida...." ). At that time, the Legislature only provided for a very limited statutory privilege of confidentiality to protect patient medical records. Id.

In 1988, however, the Legislature broadened the statutory protections for physician-patient confidentiality. The statute, as currently amended, states in relevant part:

(7)(a) Except as otherwise provided in this section and in s. 440.13(4)(c), such [medical] records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient's legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient.

...

(8) Except in a medical negligence action or administrative proceeding when a health care practitioner or provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

§ 456.057(7)(a), (8), Fla. Stat. (2009) (emphasis supplied).1

The Senate Judiciary Committee staff report provided at the time the relevant statute was enacted that:

in addition to medical records, the medical condition of a patient may not be disclosed to any person other than the patient, the patient's legal representative, or other health care providers...

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