Acosta v. Richter, No. 84413

CourtUnited States State Supreme Court of Florida
Writing for the CourtANSTEAD; GRIMES
Parties21 Fla. L. Weekly S29 Rudolph ACOSTA, M.D., Petitioner, v. Nancy RICHTER, et vir, Respondents.
Docket NumberNo. 84413
Decision Date18 January 1996

Page 149

671 So.2d 149
21 Fla. L. Weekly S29
Rudolph ACOSTA, M.D., Petitioner,
v.
Nancy RICHTER, et vir, Respondents.
No. 84413.
Supreme Court of Florida.
Jan. 18, 1996.
Rehearing Denied April 4, 1996.

Page 150

Application for Review of the Decision of the District Court of Appeal--Direct Conflict of Decisions Second District--Case No. 94-01017 (Hillsborough County).

Philip D. Parrish of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for Petitioner.

Kenneth S. Spiegelman of Grover, Weinstein, Stauber & Friedman, P.A., Miami Beach, for Respondents.

Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, Amicus Curiae for The Academy of Florida Trial Lawyers.

Raoul G. Cantero, III of Adorno & Zeder, P.A., Miami, Amicus Curiae for Florida Medical Association.

ANSTEAD, Justice.

We have for review Richter v. Bagala, 647 So.2d 215 (Fla. 2d DCA 1994), which expressly and directly conflicts with the opinion in Johnson v. Mount Sinai Medical Center, Inc., 615 So.2d 257 (Fla. 3d DCA 1993). 1 We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we approve Richter, disapprove Johnson, and hold that section 455.241(2), Florida Statutes (1993), provides for a broad physician-patient privilege of confidentiality for a patient's medical information and a limited exception to the privilege for disclosure by a defendant physician in a medical negligence action in order for the physician to defend herself.

FACTS

Nancy Richter and Gary Richter filed a medical negligence action against Frank J. Bagala, M.D., and Rudolph Acosta, M.D. During pre-trial proceedings, Dr. Acosta sought an order approving ex parte conferences between his counsel and the plaintiffs' treating physicians. Dr. Bagala joined in the request. The trial court granted the request and authorized defense counsel to have ex parte discussions with the Richters' treating physicians. 2 The Richters sought review by certiorari, and the Second District Court of Appeal quashed the trial court order, Richter, 647 So.2d at 217, and acknowledged conflict with the Third District decision in Johnson.

LAW and ANALYSIS

At issue is whether defense counsel in a medical negligence action is barred from having an ex parte conference with a claimant's current treating physicians under the provisions of section 455.241(2), Florida Statutes (1993).

Physician-Patient Privilege

The present controversy has its genesis in Coralluzzo v. Fass, 450 So.2d 858 (Fla.1984), where, in a medical malpractice action, this Court held there was no common law or statutory privilege of confidentiality as to physician-patient communications in Florida and, hence, there was no legal impediment to ex parte conversations between a patient's treating doctors and the defendants or their representatives. Id. at 859; see also Avis Rent-A-Car System, Inc. v. Smith, 548 So.2d 1193, 1194 (Fla. 4th DCA 1989) ("[T]he treating doctor is free to disclose information concerning treatment of the patient to opposing counsel.")

At the time of our decision in Coralluzzo, there was a limited statutory privilege of confidentiality for certain medical records provided by section 455.241(2), Florida Statutes (1983), but no general statutory privilege for the physician-patient relationship. We acknowledged the existence of a limited statutory privilege as to records in Coralluzzo. In 1988, however, the legislature amended section 455.241(2), ch. 88-208, § 2, Laws

Page 151

of Fla., to provide for a physician-patient privilege of confidentiality by adding the following emphasized language:

Except as otherwise provided in s. 440.13(2), 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 providers involved in the care and treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization to any person, firm, or corporation which has procured or furnished such examination or treatment with the patient's consent or when compulsory physical examination is made pursuant to Rule 1.360, Florida Rules of Civil Procedure, in which case copies of the medical record shall be furnished to both the defendant and the plaintiff. Such records may be furnished in any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records. Except in a medical negligence action when a health care 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 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.

§ 455.241(2), Fla.Stat. (1993) (emphasis added).

Since the amendment, Florida courts have split as to the extent of the physician-patient privilege of confidentiality created by the statute and the scope of the exception to the privilege in medical negligence actions. Some courts have limited the medical negligence exception to permit only a defendant physician to be excepted from the restriction of the privilege (i.e., a defendant physician may discuss her knowledge of the claimant-patient with others in order to assist in the physician's defense). Other decisions have held the medical negligence exception does away with the patient-physician privilege completely in medical negligence actions, thereby permitting any physicians who have seen or treated the claimant to freely disclose the claimant's personal medical information.

The first Florida appellate decision to interpret newly amended section 455.241(2) was Franklin v. Nationwide Mutual Fire Insurance Co., 566 So.2d 529 (Fla. 1st DCA), review dismissed, 574 So.2d 142 (Fla.1990). In Franklin, the trial court ordered the injured plaintiff to execute a medical authorization permitting ex parte discussions between the defendant's counsel and the plaintiff's physicians. Plaintiffs argued on appeal that the action of the court directly violated the physician-patient privilege of confidentiality set out in section 455.241. The district court agreed and, in a unanimous opinion authored by Judge Zehmer, explained:

This statutory language is abundantly clear on its face. It provides for waiver of confidentiality of covered medical information in only three circumstances:

1) in a medical negligence action, when a health care provider is or reasonably expects to be named as a defendant,

2) by written authorization of the patient, or

3) when compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

In other words, in all cases other than those where the health care provider is a defendant, unless the plaintiff voluntarily provides a written authorization to the defendant, the defendant's discovery of the privileged matter can be compelled only through the subpoena power of the court with proper notice in accordance with the discovery provisions of the rules of civil procedure. The reference to "proper notice" is unquestionably included to preclude the type of unilateral, ex parte interrogation

Page 152

of a physician permitted by the order under review and envisioned by respondent's counsel.

Id. at 532. In addition to its reliance on the plain language of the statute, the First District noted the existence of evidence of legislative intent consistent with this view:

This construction and application of the statute is consistent with the legislative intent reflected in the Senate judiciary committee staff report:

B. Effect of Proposed Changes:

....

The bill amends s. 455.241, F.S., to specify 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 involved in the treatment of the patient, except upon written consent of the patient. Further, the bill specifies that information disclosed to a health care practitioner by a patient is confidential and may be disclosed only to other health care providers involved in the care of the patient or by written authorization of the patient or by subpoena. In addition, this information may be disclosed by a health care provider to his attorney if the provider expects to be named as a defendant in a negligence case.

Id. (citing Fla.S.Comm. on Judiciary, CS for SB 1076 (1988) Staff Analysis 1 (May 19, 1988)).

Several other district courts have issued opinions consistent with the holding in Franklin. The Second District, in a wrongful death action against a nursing home, cited Franklin with approval and expressed its agreement as to Franklin's interpretation of the legislature's intent as to the medical negligence exception to the rule of confidentiality:

The only reasonable construction of this provision is that the legislature intended to impose no impediment to health care practitioners' disclosure of patient data in their own possession once litigation is imminent, at least to the extent necessary to defend against such litigation.

Manor Care of Dunedin, Inc. v. Keiser, 611 So.2d 1305, 1307 (Fla. 2d DCA 1992), quoted in Alachua General Hospital, Inc. v. Stewart, 649 So.2d 357, 358 (Fla. 1st DCA 1995).

In West v. Branham, 576 So.2d 381, 383 (Fla. 4th DCA), review dismissed, 583 So.2d 1034 (Fla.1991), the Fourth District agreed with the First District that the primary purpose of the statute was to provide a privilege of...

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86 practice notes
  • D.M.T. v. T.M.H., No. SC12–261.
    • United States
    • Florida Supreme Court
    • 12 Diciembre 2013
    ...and harmony to all of its parts.’ ” Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914–15 (Fla.2001) (quoting Acosta v. Richter, 671 So.2d 149, 153–54 (Fla.1996)). Further, [129 So.3d 333]we necessarily must read sections 742.13 and 742.14 together. See Fla. Dep't of State, Div. of Elect......
  • Busby v. State, No. SC02-1364.
    • United States
    • United States State Supreme Court of Florida
    • 4 Noviembre 2004
    ...Court's charge of interpreting statutes as a harmonious whole, giving effect to each of their constituent parts. See Acosta v. Richter, 671 So.2d 149, 153-54 While the deleterious consequences of the interpretation espoused by the dissent may not be readily apparent in a case involving one ......
  • Weaver v. Myers, No. SC15–1538
    • United States
    • United States State Supreme Court of Florida
    • 9 Noviembre 2017
    ...ex parte secret interviews has 229 So.3d 1134been noted not only by this Court but also by multiple other courts. See Acosta v. Richter, 671 So.2d 149, 153 (Fla. 1996) ("Were unsupervised ex parte interviews allowed, medical malpractice plaintiffs could not object and act to protect against......
  • Closet Maid v. Sykes, No. 1D98-660.
    • United States
    • Court of Appeal of Florida (US)
    • 15 Febrero 2000
    ...of the terms used in the statute itself. See Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898 (Fla.1996); Acosta v. Richter, 671 So.2d 149 (1996). If the language and meaning are clear, the court must interpret the statute according to the ordinary meaning of its terms, and may not ......
  • Request a trial to view additional results
86 cases
  • D.M.T. v. T.M.H., No. SC12–261.
    • United States
    • Florida Supreme Court
    • 12 Diciembre 2013
    ...and harmony to all of its parts.’ ” Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914–15 (Fla.2001) (quoting Acosta v. Richter, 671 So.2d 149, 153–54 (Fla.1996)). Further, [129 So.3d 333]we necessarily must read sections 742.13 and 742.14 together. See Fla. Dep't of State, Div. of Elect......
  • Busby v. State, No. SC02-1364.
    • United States
    • United States State Supreme Court of Florida
    • 4 Noviembre 2004
    ...Court's charge of interpreting statutes as a harmonious whole, giving effect to each of their constituent parts. See Acosta v. Richter, 671 So.2d 149, 153-54 While the deleterious consequences of the interpretation espoused by the dissent may not be readily apparent in a case involving one ......
  • Weaver v. Myers, No. SC15–1538
    • United States
    • United States State Supreme Court of Florida
    • 9 Noviembre 2017
    ...ex parte secret interviews has 229 So.3d 1134been noted not only by this Court but also by multiple other courts. See Acosta v. Richter, 671 So.2d 149, 153 (Fla. 1996) ("Were unsupervised ex parte interviews allowed, medical malpractice plaintiffs could not object and act to protect against......
  • Closet Maid v. Sykes, No. 1D98-660.
    • United States
    • Court of Appeal of Florida (US)
    • 15 Febrero 2000
    ...of the terms used in the statute itself. See Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898 (Fla.1996); Acosta v. Richter, 671 So.2d 149 (1996). If the language and meaning are clear, the court must interpret the statute according to the ordinary meaning of its terms, and may not ......
  • Request a trial to view additional results

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