Adelman Steel Corp. v. Winter
| Decision Date | 13 November 1992 |
| Docket Number | 91-2773 and 91-2713,Nos. 91-2306,s. 91-2306 |
| Citation | 610 So.2d 494 |
| Parties | 17 Fla. L. Week. D2571, 18 Fla. L. Week. D256 ADELMAN STEEL CORP. and Claims Center, Petitioners, v. Ken WINTER and Division of Workers' Compensation, Respondents. GREATER HOLLYWOOD YMCA and Claims Center, Petitioners, v. Heather McGEE and Division of Workers' Compensation, Respondents. Eddie SANCHEZ, Petitioner, v. FLORIDA PATROL INVESTIGATOR, INC. and Claims Center, Respondents. |
| Court | Florida District Court of Appeals |
Thomas S. Eustis, H. George Kagan, Paul A. Herman, and Sean J. Gallagher of Miller, Kagan & Chait, P.A., Deerfield Beach, for petitioners Adelman Steel Corp., Greater Hollywood YMCA, and Claims Center.
Jerold Feuer, Miami, and R. Cory Schnepper of Levine, Busch, Schnepper & Stein, P.A., Miami, for petitioner Eddie Sanchez.
Charles E. Bloom of Bloom, Feola & Bloom, Miami, for respondent Ken Winter.
Paul S. Rosenberg of the Law Office of Abe Rosenberg, Hollywood, Attorney for respondent Heather McGee.
Sean J. Gallagher of Miller, Kagan & Chait, P.A., Deerfield Beach, for respondents Florida Patrol Investigator, Inc., and Claims Center.
By separate petitions for common law writs of certiorari filed under Florida Rule of Appellate Procedure 9.100(c), petitioners seek review of discovery orders entered in three different pending workers' compensation proceedings. In general, the orders either: (1) prohibit the employers, their servicing agent, Claims Center, and their authorized representatives (including attorneys) from having ex parte communications with the claimants' medical providers regarding the claimants' medical care, treatment, or condition without first notifying the claimants' attorneys and affording such attorneys an opportunity to be present during such conversations; (2) prohibit the claimants' attorneys from engaging in similar ex parte communications with respect to medical providers; or (3) prohibit both parties from engaging in such communications. The issues presented require us to decide whether or under what circumstances, in pending workers' compensation proceedings, the attorneys and representatives of the employer and carrier/servicing agent, as well as the claimant's attorney, may discuss a claimant's medical condition with a treating or examining physician, or other medical care provider, without providing prior notice and an opportunity to the opposing attorney to be present at any such discussion. In view of the similarity of issues presented in each case, the three petitions and the responses have been consolidated for purposes of disposition in a single opinion.
To obtain relief by certiorari, the petitioner must demonstrate that the order being challenged (1) constitutes a departure from the essential requirements of law, (2) will cause the petitioner material harm, and (3) cannot be adequately remedied by appeal. Butler Construction v. Walker, 524 So.2d 691, 692-93 (Fla. 1st DCA 1988). Common law certiorari is an appropriate remedy for reviewing discovery orders in workers' compensation cases and will ordinarily be granted when the order constitutes a departure from the essential requirements of law. Perez v. Eastern Airlines, 569 So.2d 1290 (Fla. 1st DCA 1990), rev. denied, 581 So.2d 1307 (Fla.1991). See also West v. Branham, 576 So.2d 381 (Fla. 4th DCA), rev. dismissed, 583 So.2d 1034 (Fla.1991); Franklin v. Nationwide Mutual Life Ins. Co., 566 So.2d 529 (Fla. 1st DCA), rev. dismissed, 574 So.2d 142 (Fla.1990). 1
1] We deny the petitions for certiorari in cases number 91-2306 and 91-2773, and we grant the petition for certiorari and quash the order in case number 91-2713.
The issues presented are governed by the interrelated provisions in sections 455.241 and 440.13, Florida Statutes. Section 455.241 establishes, as a matter of public policy, the confidentiality of a patient's medical records, reports, and information given by that person in connection with medical treatment or examination, and prohibits the disclosure thereof by the health care practitioner or entity providing such services other than as provided therein. Subsection 440.13(2) provides for limited disclosure of medical information in workers' compensation matters under specifically defined exceptions to the restrictions set forth in section 455.241, and thereby facilitates the self-executing concept for providing benefits under the Workers' Compensation Law. These statutory disclosure provisions relate to matters that do not alter or amend the parties' vested substantive rights, so we construe and apply the language of the statutes as it appears in the 1991 Florida Statutes. Parenthetically, however, we note that the language of the 1991 statutes is not significantly different from that in the 1989 Florida Statutes and the 1990 supplement thereto.
with certain exceptions relating to psychotherapeutic records not involved in these cases. Subsection 455.241(2) reads in pertinent part:
(2) Except as otherwise provided in s. 440.13(2), such records may not be furnished to, and the medical condition of the patient may not be discussed with, any person other than the patient or his legal representative or other health care providers involved in the care or 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 records 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 his 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 (Emphasis added.)
by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given....
The plain language of section 455.241 means that:
(1) as a matter of public policy, copies of records created by a defined health care practitioner incident to the examination or treatment of a patient must be provided to that patient or his legal representative upon request;
(2) such health care practitioners are prohibited from furnishing the records defined in subsection 455.241(1) and discussing the medical condition of a patient, with any person other than the patient or his legal representative, or other health care providers involved in the care or treatment of the patient, without the patient's written authorization;
(3) copies of such records can be furnished without the patient's written authorization to any person, firm, or corporation that procured or furnished such examination or treatment with the patient's consent, or when a compulsory examination is made pursuant to rule 1.360;
(4) such records can be furnished to a party in any civil or criminal action upon issuance of a subpoena from a court after proper notice is given to the patient or his legal representative; and,
(5) all information disclosed to a health care practitioner by a patient is confidential (except in a medical negligence action against the practitioner), and disclosure of such information is permitted only (a) to other health care providers involved in the care and treatment of the patient, or (b) if permitted by written authorization from the patient, or (c) if compelled by a subpoena at deposition, evidentiary hearing, or trial and proper notice has been given.
The evident intent of these provisions may be distilled down to this: disclosure of the described medical records and information to a person or entity other than the patient, his legal representative, or a health care practitioner providing care and treatment to the patient must be predicated either on the patient's consent (including consent to treatment provided by others) or appropriate compulsion pursuant to a court rule, subpoena, or order.
In Franklin v. Nationwide Mutual Life Ins. Co., 566 So.2d 529 (Fla. 1st DCA), rev. dismissed, 574 So.2d 142 (Fla.1990), we held that a trial court was not authorized by section 455.241 to direct the plaintiff in a personal injury action to execute and deliver to the defendant a medical authorization form allowing defense counsel to engage in ex parte communications with the plaintiff's treating physicians for the purpose of discussing the plaintiff's medical condition. The order was entered in a civil action brought by the plaintiffs (husband and wife) against their insurer for damages resulting from an automobile accident. The insurer filed a "motion for permission to speak with plaintiff's treating and previously treating physicians," specifically "to discuss their possible testimony...
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