Hannon v. Roper, 1D06-389.
| Citation | 945 So.2d 534 |
| Decision Date | 16 November 2006 |
| Docket Number | No. 1D06-389.,1D06-389. |
| Parties | Yvette HANNON, as personal representative of the Estate of Nathan Scott Hannon, and on behalf of all survivors, Petitioner, v. Steven ROPER, M.D., Shands Teaching Hospital and Clinics, Inc., d/b/a Shands at Live Oak, Shands Medical Group of Live Oak, and Shands Healthcare; Robert Spindell, D.O., and B.S. Hegde, M.D., Respondents. |
| Court | Court of Appeal of Florida (US) |
John S. Mills of Mills & Carlin, P.A., Jacksonville; James W. Gustafson, Jr., of Searcy Denney Scarola Barnhart & Shipley, P.A., Tallahassee; and W. Roderick Bowdoin, Lake City, for Petitioner.
Susan L. Kelsey of Anchors Smith Grimsley, Tallahassee, for Respondents
Steven Roper, M.D., and Shands Teaching Hospital and Clinics, Inc.
Ronald L. Harrop of Cooney, Mattson, Lance, Blackburn, Richards & O'Connor, P.A., Orlando, for Respondent Steven Roper, M.D.
John D. Jopling, Gainesville, for Respondent Shands Teaching Hospital and Clinics, Inc.
Jennings L. Hurt, III, and Henry W. Jewett, II, of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Respondent Robert Spindell, M.D.
John S. Derr, Tallahassee, for Respondent B.S. Hegde, M.D.
V. Julia Luyster of Bernstein, Chackman and Liss, Hollywood; Tracy Raffles Gunn of Fowler White Boggs Banker, P.A., Tampa; and Jeffrey Bigman of Smith, Hood, Perkins, et al., Daytona Beach, for Amicus Curiae Florida Defense Lawyers' Association.
Alan E. McMichael of Stripling, McMichael & Stripling, P.A., Gainesville, for Amicus Curiae The Academy of Florida Trial Lawyers.
This petition for writ of certiorari requires us to determine whether, in this medical negligence action, the trial court erred in authorizing Decedent's physician, who is not a party to this litigation, to have ex parte communications concerning Decedent's medical care and treatment. We find that this authorization departs from the essential requirements of law and therefore grant the petition.
Petitioner has filed suit against Shands Teaching Hospital and Clinics, Inc., and two physicians for medical malpractice arising out of the death of her son ("Decedent"). The alleged malpractice took place at a Shands doctor's office and then at Shands Hospital in Live Oak. Thereafter, Decedent was treated at Shands Medical Center in Gainesville by Dr. Roper, who is employed by the University of Florida College of Medicine. Although neither Dr. Roper nor the University is a defendant in this case, the University's self-insurance program ("SIP") hired an attorney to represent Dr. Roper at his deposition scheduled by Petitioner. The SIP insures and defends both Shands and the University.
Petitioner objected to counsel hired by a representative of the defendant hospital being allowed to consult with Decedent's treating physician. Petitioner filed a motion for protective order seeking to prevent Dr. Roper from disclosing Decedent's medical condition, history, treatment or condition with anyone "other than as permitted by any of the enumerated statutory exceptions to the physician-patient privilege." Dr. Roper's counsel filed a counter motion for protective order seeking to prevent Petitioner from interfering with Dr. Roper discussing Decedent's care with his own counsel, arguing that any such interference would violate or infringe upon the attorney-client communication between Dr. Roper and his counsel.
The trial court issued an order granting Dr. Roper's motion for protective order and denying Petitioner's motion, effectively ruling that the patient confidentiality statute does not prohibit communication between a non-party physician/witness and his own attorney. This timely petition for certiorari follows.
A writ of certiorari should only be issued where the petitioner has no adequate remedy on appeal and where the trial court's order departs from the essential requirements of law. Metabolife Int'l, Inc. v. Holster, 888 So.2d 140, 141 (Fla. 1st DCA 2004). Here, the trial court's order denying Petitioner's motion for protective order based on a claim of privilege clearly satisfies the first requirement. Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So.2d 277, 279 (Fla. 2d DCA 2005). We therefore are asked to determine only if the trial court's order meets the second requirement and is a departure from the essential requirement of law.
Section 456.057, Florida Statutes (2005), establishes the physician-patient privilege:
(6) 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.
(Emphasis added.) A plain reading of the statute demonstrates that there are four exceptions to the general rule. A health care practitioner or provider may discuss a patient's medical condition and treatment if: (1) it is necessary in order to defend the practitioner or provider in a medical negligence action in which the practitioner or provider is or expects to be a named defendant; (2) health care providers who are involved in the care and treatment of the patient need to discuss the patient's care and treatment with one another; (3) there is written authorization from the patient; or (4) the physician is subpoenaed. Only the first exception is at issue here....
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