Damsky v. Univ. of Miami

• Citation: 152 So.3d 789
• Decision Date: 10 December 2014
• Docket Number: No. 3D14–2024.,3D14–2024.
• Parties: Debra DAMSKY and Gerald Damsky, Petitioners, v. UNIVERSITY OF MIAMI and Alan Livingstone, M.D., Respondents.
• Court: Court of Appeal of Florida (US)

152 So.3d 789

Debra DAMSKY and Gerald Damsky, Petitioners

v.UNIVERSITY OF MIAMI and Alan Livingstone, M.D., Respondents.

No. 3D14–2024.

District Court of Appeal of Florida, Third District.

Dec. 10, 2014.

The Leto Law Firm, and Justin C. Leto ; Hall, Lamb and Hall, P.A., and Matthew P. Leto, Miami, for petitioners.

Fowler White Burnett, P.A., and Marc J. Schleier and Christopher E. Knight, Miami, for respondents.

Before SALTER, FERNANDEZ, and LOGUE, JJ.

Opinion

LOGUE, J.

This petition for a writ of certiorari arises out of a lawsuit in which Debra Damsky and Gerald Damsky are suing the University of Miami and Alan Livingstone, M.D., for medical malpractice, which allegedly took place during a surgery performed on Ms. Damsky at Jackson Memorial Hospital. In the course of preparing the case for trial, the attorneys for the University made ex parte contacts with Dr. Jamie Barkin, a gastroenterologist at Mount Sinai Medical Center who treated Ms. Damsky for problems resulting from the surgery. The Damskys petitioned for a writ of certiorari to “quash the portion of the Lower Court's Order finding that any communication between Dr. Barkin and [the University] are privileged and that ex parte communications [by the University] with Dr. Barkin are permissible.”

The substantive legal issue that underlies this petition involves whether Dr. Barkin is an employee of the University. The patient confidentiality provisions of section 456.057, Florida Statutes (2014), have been interpreted by the Florida Supreme Court to prohibit treating physicians from engaging in communications regarding their treatment of a patient to third parties, including attorneys, without the authorization of the patient. Hasan v. Garvar, 108 So.3d 570, 577 (Fla.2012). An exception to this rule permits a hospital to communicate with its employees about patient care in preparing the defense of a case in which the hospital is a defendant. Lee Mem'l Health Sys. v. Smith, 40 So.3d 106, 109 (Fla. 2d DCA 2010) ; Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So.2d 277, 282 (Fla. 2d DCA 2005). The parties disagree whether this case comes within the ambit of this exception because they cannot agree whether Dr. Barkin, who works at Mount Sinai pursuant to an affiliation agreement between the University and Mount Sinai, is an employee of the University. The trial court ultimately determined that Dr. Barkin was an employee of the University.

Before reaching the substance of this issue, however, we must first determine if we have jurisdiction. Orders governing discovery are not one of the interlocutory orders that can be appealed as a matter of right. Fla. R. App. P. 9.130. Interlocutory orders that are not appealable as a matter of right, however, may be reviewed by a petition for a writ of certiorari. But a petition for writ of certiorari is not simply an alternative method to obtain an interlocutory appeal when the rules do not provide one. In fact, a petition for writ of certiorari is not an appeal. It is an original action seeking an extraordinary writ. It differs from an appeal in many ways. Among other things, the standard of review governing a petition for certiorari is much higher than the standard governing an appeal of right.

To prevail in its petition for a writ of certiorari, a party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on post-judgment appeal. Sucart v. Office of the Comm'r, 129 So.3d 1112, 1114 (Fla. 3d DCA 2013) (citation omitted). These last two elements are sometimes referred to as irreparable harm. Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So.3d 712, 721 (Fla.2012).

This higher standard applies because a more relaxed standard would allow “piecemeal review of non-final trial court orders [that] will impede the orderly administration of justice and serve only to delay and harass.” Bd. of Trustees of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454 (Fla.2012) (quotations and citations omitted). Under this high standard, few non-final orders qualify for the use of a writ of certiorari. Citizens Property Ins. Corp. v. San Perdido Ass'n, Inc., 104 So.3d 344, 351–52 (Fla.2012).

Under the high standard for issuance of certiorari, the first and necessary condition is demonstration of irreparable harm. Mere legal error without irreparable harm, even a departure from the essential requirements of law, while appealable at the end of the case, is not a basis for the issuance of a writ of certiorari. Unless the petitioner establishes...