Castillo-Plaza v. Green

• Decision Date: 24 May 1995
• Docket Number: Nos. 94-1428,CASTILLO-PLAZ,94-1493 and 94-1675,M,s. 94-1428
• Citation: 655 So.2d 197
• Parties: 20 Fla. L. Weekly D1253 JuanD., and Juan Castillo-Plaza, M.D., P.A., Petitioners, v. Marsha GREEN, Respondent. Lydia D. PIERRE, by and through her husband and legal guardian, Issonel PIERRE, the Pierre Children and Issonel Pierre, individually, Petitioners, v. NORTH SHORE MEDICAL CENTER, INC., James W. Porter, M.D., and Harari Porter, Blumenthal and Brown, M.D., P.A., d/b/a Emergency Medical Specialists of South Florida, Respondents. Margarita GIRON, Petitioner, v. Jose J. NOY, M.D., Jose J. Noy M.D., P.A., Raul Ravelo, M.D., and Inter-American Institute of Hematology and Oncology, a Florida Corporation, Respondents.
• Court: Florida District Court of Appeals

Page 197

655 So.2d 197

20 Fla. L. Weekly D1253

Juan CASTILLO-PLAZA, M.D., and Juan Castillo-Plaza, M.D., P.A., Petitioners, v. Marsha GREEN, Respondent.

Lydia D. PIERRE, by and through her husband and legal guardian, Issonel PIERRE, the Pierre Children and Issonel Pierre, individually, Petitioners, v. NORTH SHORE MEDICAL CENTER, INC., James W. Porter, M.D., and Harari Porter, Blumenthal and Brown, M.D., P.A., d/b/a Emergency Medical Specialists of

South Florida, Respondents.

Margarita GIRON, Petitioner, v. Jose J. NOY, M.D., Jose J. Noy M.D., P.A., Raul Ravelo,

M.D., and Inter-American Institute of Hematology

and Oncology, a Florida Corporation, Respondents.

Nos. 94-1428, 94-1493 and 94-1675.

District Court of Appeal of Florida,

Third District.

May 24, 1995.

Stephens, Lynn, Klein & McNicholas and Philip D. Parrish, Miami, for petitioners Juan Castillo-Plaza, M.D., and Juan Castillo-Plaza, M.D., P.A.

Don Russo, Russo & Talisman and Patrice A. Talisman, Coconut Grove, for petitioner Margarita Giron.

Robert J. Dickman and Karen L. Bzdyk, Coral Gables, for petitioners Lydia D. Pierre, etc., et al.

Colson, Hicks, Eidson, Colson, Matthews & Gamba and Tomas F. Gamba, Miami, for respondent Marsha Green.

Stephens, Lynn, Klein & McNicholas and Philip D. Parrish, Miami, for respondents Raul Ravelo, M.D., and Inter-American Institute of Hematology and Oncology and for respondents North Shore Medical Center, Inc.

George, Hartz, Lundeen, Flagg & Fulmer and Esther E. Galicia, Coral Gables, for respondents James W. Porter, M.D., and Harrari, Porter, Blumenthal and Brown, M.D., P.A., d/b/a Emergency Medical Specialists of South Florida.

Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin and Joel S. Perwin and Joel D. Eaton, Miami, for amicus curiae Academy of Florida Trial Lawyers.

Adorno & Zeder and Raoul G. Cantero, III, Coconut Grove, and Jay A. Ziskind, Miami, Christopher L. Nuland, Jacksonville, for amici curiae Dade County Medical Ass'n and Florida Medical Ass'n.

Hicks Anderson & Blum and Mark Hicks, Miami, for amicus curiae Physicians Protective Trust Fund.

Before SCHWARTZ, C.J., and HUBBART, NESBITT, BASKIN, JORGENSON, COPE, LEVY, GERSTEN, GODERICH and GREEN, JJ.

ON HEARING EN BANC

SCHWARTZ, Chief Judge.

These petitions for certiorari, which have been consolidated for en banc consideration, raise the common, currently contentious, issue of the effect of section 455.241(2), Florida Statutes (1989) on the right of the defense in a medical malpractice case to ex parte access to the plaintiff's non-party treating physicians. In one of the cases, Castillo-Plaza v. Green, Case no. 94-1428, ¹ the trial judge precluded any such communication whatever "except through the use of deposition as provided by the Florida Rules of Civil Procedure," and the defendants petitioned for certiorari review. In the other two, Pierre v. North Shore Medical Center, Case no. 94-1493 and Giron v. Noy, Case no. 94-1675, the trial court precluded ex parte discussions as to the patient's "medical condition," but allowed communications as to "the issues in this case or any other matter not otherwise prohibited by law." ² In these cases, the respective plaintiffs seek certiorari review.

We hold alternatively that (1) because of a clearly stated exception contained in the statute, the privilege established by section 455.241(2) does not at all apply to medical malpractice cases like these, and (2) assuming arguendo a contrary determination that it does, there is no basis even under the statute for precluding communications as to any matter beyond the medical records and the care, treatment and medical condition of the patient. Accordingly, the petition in Castillo-Plaza is granted and those in Pierre and Giron are denied.

I.

The present controversy had its genesis in Coralluzzo v. Fass, 450 So.2d 858 (Fla.1984) and Frantz v. Golebiewski, 407 So.2d 283 (Fla. 3d DCA 1981), in which the Supreme Court and this one respectively held that there was no legal impediment to "ex parte," but voluntary, conversations concerning any matter between a patient's treating doctors and those involved in the defense of his personal injury claim, including one for malpractice. In 1988, however, the legislature added the emphasized language to section 455.241(2):

(2) Such [medical] records shall not be furnished to and the medical condition of a 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 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 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 by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

Ch. 88-208, Sec. 2, Laws of Fla. (Sec. 455.241(2), Fla.Stat. (1989)) (emphasis supplied). In several, apparently conflicting, decisions since, the district courts have considered the effect of this amendment on the previous rule. See Franklin v. Nationwide Mut. Fire Ins. Co., 566 So.2d 529 (Fla. 1st DCA 1990) (non-medical malpractice action), review dismissed, 574 So.2d 142 (Fla.1990); Phillips v. Ficarra, 618 So.2d 312 (Fla. 4th DCA 1993) (same); Johnson v. Mount Sinai Medical Ctr., Inc., 615 So.2d 257 (Fla. 3d DCA 1993) (malpractice action); Kirkland v. Middleton, 639 So.2d 1002 (Fla. 5th DCA 1994) (same), review dismissed, 645 So.2d 453 (Fla.1994); Richter v. Bagala, 647 So.2d 215 (Fla. 2d DCA 1994) (same), review granted sub nom. Acosta v. Richter, 650 So.2d 989 (Fla.1995). We hold in this case, however, that the amendment itself negates the applicability of the statute in all medical malpractice cases. We base this conclusion--which is adopted here for the first time probably because it seems never to have been previously considered ³--on the statute's clear provision that the privilege it establishes with respect to

information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient

applies

[e]xcept in a medical negligence action when a health care provider is or reasonably expects to be named as a defendant....

Sec. 455.241(2), Fla.Stat. (1989) (emphasis supplied). Although the statute as a whole is far from a model of clarity, we find it impossible to read the plain language of the exception--which is the primary, if not the exclusive, appropriate source of its meaning, see 49 Fla.Jur.2d Statutes Sec. 111 (1984)--in any other way. To repeat and rephrase, the privilege of confidentiality for information disclosed to "a health care practitioner"--like the treating physicians involved in these cases--does not apply in "a medical negligence action when a health care provider is or reasonably expects to be named as a defendant"--which describes the present actions perfectly. In this regard, it is well established, in accordance with the ordinary rules of grammar and rhetoric, that the word "a," as repeatedly and exclusively used in the operative portions of the statute, means "any." Izadi v. Machado (Gus) Ford, Inc., 550 So.2d 1135, 1138 n. 3 (Fla. 3d DCA 1989); State ex rel. Roberts v. Snyder, 149 Ohio St. 333, 78 N.E.2d 716 (1948); First Am. Nat'l Bank v. Olsen, 751 S.W.2d 417 (Tenn.1987), appeal dismissed, 485 U.S. 1001, 108 S.Ct. 1460, 99 L.Ed.2d 691 (1988); see United States Fidelity & Guar. Co. v. State Farm Mut. Auto. Ins. Co., 369 So.2d 410, 412, (Fla. 3d DCA 1979) ("an"). If, as the plaintiffs argue, the exception refers only to a case in which the treating physician was herself the active or potential defendant, the statute would read "except in a medical negligence action when the [or that] health care provider is or reasonably expects to be named as a defendant" or that "information disclosed to the [or that] health care practitioner ... is confidential." But it does not read that way and we are powerless judicially to amend the statute to provide that it does. See Holly v. Auld, 450 So.2d 217 (Fla.1984). ⁴

While resort to canons of statutory construction is probably unnecessary in light of what the statutory exception expressly provides, it is not irrelevant that the application of those rules leads to the same result:

1. Because the legislature is deemed to intend different meanings by the use of different words, Ocasio v. Bureau of Crimes Compensation Div. of Workers' Compensation, 408 So.2d 751 (Fla. 3d DCA 1982); 49 Fla.Jur.2d Statutes Sec. 133 (1984), the fact that it referred to a health care provider who is a potential defendant and to a health care practitioner to whom information had been given must mean that they are not the same person and that the exception to confidentiality therefore is not restricted to a case in which only that doctor is being sued.

2. More importantly, the statute must be strictly interpreted and exceptions to it broadly construed both because it is in derogation of the common law as...