Bradley v. Brotman

• Decision Date: 19 February 2003
• Docket Number: No. 4D00-4236.,4D00-4236.
• Citation: 836 So.2d 1129
• Parties: Kristen and Donald BRADLEY, as Parents, Natural Guardians and Next Friends of their daughter, Kelly Bradley, a minor child, Appellants, v. Michelle BROTMAN, Appellee.
• Court: Florida District Court of Appeals

836 So.2d 1129

Kristen and Donald BRADLEY, as Parents, Natural Guardians and Next Friends of their daughter, Kelly Bradley, a minor child, Appellants, v. Michelle BROTMAN, Appellee.

No. 4D00-4236.

District Court of Appeal of Florida, Fourth District.

February 19, 2003.

John H. Pelzer and Fabienne Leconte of Ruden, McClosky, Smith, Schuster & Russell, P.A., and Jon E. Krupnick of Krupnick, Campbell, Malone, Roselli, Buser, Slama, Hancock, McNelis, Liberman & McKee, P.A., Fort Lauderdale, for appellants.

Vanessa A. Reynolds of Conrad & Scherer, LLP, Fort Lauderdale, for appellee.

ON MOTIONS FOR REHEARING

WARNER, J.

The motions for rehearing are hereby denied. We withdraw our previously issued opinion and substitute the following in its place. We confront in this case the necessity to reverse a final judgment due to defense counsel's misconduct in the admission of evidence at trial. The trial court refused to grant plaintiff's request to exclude the evidence because plaintiff's counsel stipulated to the admission of the medical records in question. We conclude that there was no meeting of the minds as to a specific portion of the medical records, and the records should have been redacted to remove that portion regarding the doctor's opinion based upon surprise and prejudice. The trial court's refusal to redact this portion of the record was an abuse of discretion, requiring reversal for a new trial.

There are actually two different incidents involving attorney misconduct in this case. One does not require reversal. However, we detail both because at one point in the progress of this case the facts intersect.

In September 1996, Kelly Bradley, who was two years old at the time, was bitten on the lip by a dog belonging to appellee Brotman. Some weeks later her parents noticed her hair falling out. Through consultations and treatment with a number of physicians, she was diagnosed with alopecia areata, a skin disease resulting in hair loss on the scalp. Her parents ultimately filed suit against Brotman, and whether the dog bite and consequent stress could have caused or aggravated the alopecia became the main issue.

Bradley's counsel, Jon Krupnick, listed several doctors in his expert witness list for trial, including Dr. Bernhardt. Defense counsel, Reid Cocalis, moved to limit the list, and the trial court ordered the list reduced. Krupnick's amended list included only three physicians to testify on causation. Dr. Bernhardt was not on the list. When a subsequent settlement offer from Krupnick indicated that Dr. Bernhardt would have evidence to support the claim, Cocalis sought to speak to the doctor, whom he had not deposed. On May 23, 2000, just a few days before trial, Cocalis called Dr. Bernhardt without notice to Krupnick. Cocalis reminded the doctor that he had treated him in the past. He then told the doctor that he represented Brotman in this case. Cocalis asked the doctor, "off the record," if he was intending to testify regarding causation and the substance of that testimony. When Dr. Bernhardt told Cocalis to discuss the matter with Krupnick, Cocalis replied that he could not trust him. The doctor ended the call quickly and immediately called Krupnick.

Krupnick filed a motion to strike Brotman's pleadings as a result of the contact with Dr. Bernhardt, alleging that the conversation violated section 455.667(5), Florida Statutes (1999), which prevents any ex parte communication with a physician regarding a patient's condition. Because Bernhardt was a crucial witness and now would not testify, Krupnick argued a sanction should be imposed.

Brotman argued that regardless of Cocalis' conversations with Dr. Bernhardt, the doctor was not listed on the reduced expert list, and could not testify. Allowing him to do so at this late date would prejudice the defense. The court authorized Kelly Bradley's guardian ad litem to investigate the issue. After speaking with Dr. Bernhardt, the guardian reported that the contact was willful and that the doctor's trial testimony was tainted. At a second hearing on the day of trial, the court ultimately denied Krupnick's motion to strike the pleadings.

At the same time the incident with Dr. Bernhardt was being resolved, Cocalis issued two subpoenas duces tecum for trial on May 23 and 25 to the medical records custodians with Drs. Unis' and Bernhardt's offices and to Dr. Unis personally, for all documents relating to Kelly's treatment. Krupnick did not receive notice that these trial subpoenas were issued. Contrary to the directives of the subpoena, which requested the presence of a records custodian at trial, Dr. Unis sent his medical records to Cocalis' office. Cocalis did not notify Krupnick upon receiving these records. At trial on May 30, when arguing about the Bernhardt contact, Krupnick asked Cocalis whether he had any other ex parte contacts with plaintiff's experts. Cocalis stated that the only contact was the subpoena for the records custodian, "where the records custodian has called my office." When Krupnick asked who was contacted, Cocalis' co-counsel stated she contacted Dr. Bernhardt's office. Cocalis did not mention the subpoena which he had issued for Dr. Unis' records.

Dr. Unis, a dermatologist, examined Kelly only once in 1996 and diagnosed the alopecia areata. He explained the condition to the Bradleys and suggested that they get a second opinion. In 1999, his deposition was taken, and his notes of this one visit were attached to the deposition. Shortly before trial in 2000, Krupnick called him regarding Kelly's condition. Dr. Unis noted this conversation in Kelly's medical record on May 11, 2000 (six months after the deposition). This note stated, "I advised him that I did not think that the patient's persistent problem with alopecia areata at this point would be due to stress from a prior dog bite." A second notation indicated that he sent his records to Cocalis on May 24, 2000. Krupnick did not receive these amended medical notes.

At trial, after an abundance of medical testimony from each side, Krupnick read Dr. Unis' deposition to the jury. During his deposition, Dr. Unis testified that because medical studies had cited stress as a possible cause or aggravating factor of alopecia areata, he would not be surprised if a study linking alopecia areata with dog bites existed. However, he did not formulate an opinion regarding the cause of Kelly's condition. At his deposition, Dr. Unis identified his medical records, and they were introduced as defendant's Exhibit 1. When Cocalis attempted to call Dr. Unis' records custodian at trial, Krupnick announced he would stipulate to their admission because Dr. Unis' deposition had just been read. What Cocalis presented to the clerk for admission were not the records attached to the deposition but rather the records sent to his office, which included the note regarding the telephone conversation with Krupnick, of which Krupnick was unaware.

At the close of all the evidence, Krupnick reviewed the evidence that had been admitted and discovered the additional note regarding the telephone conversation in Dr. Unis' records. Krupnick renewed his motion for sanctions and to strike the pleadings, both of which were denied. He also moved to have the note removed from the record on the grounds of fairness, the lack of opportunity to subject it to cross-examination, and that it had no probative value. The court denied the motion because Krupnick had stipulated to the entry of the document. Before Cocalis began his closing argument, Krupnick again argued that Dr. Unis' medical records were obtained in violation of section 455.667(5), his opinion was not based upon a medical probability, and Cocalis fraudulently entered the notes into the record. Cocalis responded that Krupnick was at fault for not reviewing the documents before stipulating to their entry into evidence. Krupnick noted that his stipulation was to the medical records introduced during Dr. Unis' deposition, which did not include the telephone note. The court refused to redact the record.

During Cocalis' closing arguments, he showed the jury a poster-board-size version of Dr. Unis' medical note on the telephone conversation with Krupnick. Cocalis highlighted that Dr. Unis was Kelly's only physician that Krupnick did not call to present his opinion because Dr. Unis did not think Kelly's condition was related to the stress from the dog bite.

The jury awarded Bradley her past medical expenses but did not award any future damages. Krupnick filed a post-verdict motion to strike Brotman's pleadings and a motion for new trial based upon the ex parte contact with the doctors. The court denied the motion and Bradley filed this appeal.

We will address the issues in reverse order as we conclude that the failure to exclude the telephone note on the medical records of Dr. Unis is reversible error. As to the contact with Dr. Bernhardt, while it was unlawful and unprofessional, the denial of sanctions on this issue was not an abuse of discretion.

Section 455.667(5) (renumbered as section 456.057(5)), provides that a patient's medical records,

[M]ay 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.

The statute allows for medical records to be furnished without the patient's written authorization under certain circumstances, including 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. In Acosta v. Richter, 671 So.2d 149, 154-55 (Fla.1996), the supreme court noted that this section created a "broad and express privilege of confidentiality as to the medical records and the medical...