Dannemann v. Shands Teaching Hosp.

• Decision Date: 11 May 2009
• Docket Number: No. 1D08-3923.,1D08-3923.
• Parties: Patricia DANNEMANN, Petitioner, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC.; Thomas M. Beaver, M.D.; Sigurd J. Normann, M.D.; Diana Cardona, M.D.; and University of Florida Board of Trustees, Respondents.
• Court: Florida District Court of Appeals

14 So.3d 246

Patricia DANNEMANN, Petitioner, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC.; Thomas M. Beaver, M.D.; Sigurd J. Normann, M.D.; Diana Cardona, M.D.; and University of Florida Board of Trustees, Respondents.

No. 1D08-3923.

District Court of Appeal of Florida, First District.

May 11, 2009.

James J. Taylor, Jr. of Taylor & Taylor, P.A., Keystone Heights, for Petitioner.

Susan L. Kelsey, Kelsey Appellate Law Firm, P.A., Tallahassee, for Respondents Thomas M. Beaver, M.D.; Sigurd J. Normann, M.D.; Diana Cardona, M.D.; and the University of Florida Board of Trustees.

Alan E. McMichael, The McMichael Law Firm, PL, Gainesville, for Amicus Curiae The Florida Justice Association.

On Motion for Rehearing and Clarification

VAN NORTWICK, J.

Upon consideration of the Motion for Rehearing and Clarification, our opinion of March 13, 2009, is withdrawn and the following substituted therefor.

Patricia Dannemann, the plaintiff in a suit which alleges that employees of Shands Teaching Hospital and Clinics, Inc. (Shands) negligently caused the death of her husband, seeks certiorari review of an order denying her motion to prohibit pre-deposition conferences between nonparty physicians, Dr. Beaver, Dr. Normann, and Dr. Cardona, employed by the University of Florida Board of Trustees (UFBOT), also a nonparty, and the counsel hired by the University of Florida Self Insurance Program (SIP), to represent these physicians at their depositions. SIP insures and defends both Shands and the University. The order would allow the physician witnesses to discuss the decedent's medical condition. Because this case is controlled by our previous decision in Hannon v. Roper, 945 So.2d 534 (Fla. 1st DCA 2006), and the Florida Supreme Court's decision in Acosta v. Richter, 671 So.2d 149 (Fla. 1996), we grant the petition and quash the trial court's order.

Hannon also involved a suit against Shands for alleged medical malpractice causing the death of Hannon's son. This court held in Hannon that the clear, unambiguous language of the patient confidentiality statute, section 456.057(6), Florida Statutes (2005), presently numbered as subsection (8), prohibits any nonparty physician from disclosing the decedent's medical condition and history to the counsel hired by the defendant's insurer to represent the physician at a deposition. We explained that there are only four circumstances that would allow a health care practitioner or provider to discuss a patient's medical condition and treatment, Hannon, 945 So.2d at 536, and none of those circumstances are present in this case. The legislature created the physician-patient privilege by statute "where none existed before, and [provided] an explicit but limited scheme for the disclosure of personal medical information." Acosta, 671 So.2d at 154. Though respondents believe the statute is ill-conceived, that is a matter for the legislature to address.

Respondents raise the same constitutional issues that were raised in Hannon. Specifically, respondents contend that our application of section 456.057 in Hannon violates the physicians' constitutional right to counsel protected by the free speech clause of the First Amendment and their rights under the due process clause of the Fourteenth Amendment. Amend. I, U.S. Const.; Amend. XIV § 1, U.S. Const. Respondents urge us to address these issues, arguing that they were unresolved in Hannon. Certainly, "no decision is authority on any question not raised and considered. ..." State ex rel. Helseth v. Du Bose, 99 Fla. 812, 128 So. 4, 6 (1930). Even though this court in Hannon did not discuss the constitutional issues raised there, the court's silence supports the necessary conclusion that those issues were...