Estate of Stephens v. Galen Health Care, 2D04-3002.

• Citation: 911 So.2d 277
• Decision Date: 30 September 2005
• Docket Number: No. 2D04-3002.,2D04-3002.
• Parties: ESTATE OF Delia F. STEPHENS, by and through Rita F. CLARK, personal representative, Petitioner, v. GALEN HEALTH CARE, INC., Galencare, Inc., and HCA-The Healthcare Company, Respondents.
• Court: United States State Supreme Court of Florida

911 So.2d 277

ESTATE OF Delia F. STEPHENS, by and through Rita F. CLARK, personal representative, Petitioner, v. GALEN HEALTH CARE, INC., Galencare, Inc., and HCA-The Healthcare Company, Respondents.

No. 2D04-3002.

District Court of Appeal of Florida, Second District.

September 30, 2005.

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Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, and Kimberley M. Kohn of Wilkes & McHugh, P.A., Tampa, for Petitioner.

Wm. Jere Tolton, III, and Joseph F. Kinman of Ogden & Sullivan, P.A., Tampa, for Respondents.

VILLANTI, Judge.

The Estate of Delia F. Stephens (the Estate), the plaintiff in a medical negligence case, petitions this court for a writ of certiorari quashing an order allowing ex parte communications between the attorneys of the defendant hospital—operated by Galen Health Care, Inc., Galencare, Inc., and HCA-The Healthcare Company (the Respondents)—and the physicians and other health care providers responsible for Ms. Stephens' treatment. We grant the petition and quash the order because it is too broad in permitting ex parte discovery of medical information "with any treating physicians or health care providers who provided care and treatment to Delia Stephens at Brandon Hospital" during a specified time period. (Emphasis added.)

Ms. Stephens died while she was a patient at Brandon Hospital, which is operated by the Respondents—corporate entities that, according to the Estate, control policymaking, training, staffing, quality of care, and budgeting of Brandon Hospital. The Estate brought a negligence survival claim (count I) and a wrongful death action (count II) against the Respondents, alleging that failures in the overall management of Brandon Hospital—including failure to supervise and train its nursing staff and failure to provide proper custodial care, wound care, nutrition, hydration, and weight monitoring—caused Ms. Stephens' death. The Estate did not sue any of the treating physicians for medical negligence. The Respondents filed a "Motion For Order Authorizing Ex Parte Communications With Former Treating Physicians and Health Care Providers." The trial court, citing Royal v. Harnage, 826 So.2d 332 (Fla. 2d DCA 2002), granted the motion to allow the Respondents' attorneys to communicate ex parte with any physicians and other health care providers responsible for treating Ms. Stephens during the time alleged in the complaint. The Estate petitioned this court for a writ of certiorari quashing the trial court's order, arguing that the order violates Ms. Stephens' privilege as a patient to confidential communications with her health care providers. As discussed below, we agree because the trial court's order did not limit communication to agents and employees or former employees of the Respondents.

As a preliminary matter, we note that review by certiorari is appropriate in cases that allow discovery of privileged information. Lemieux v. Tandem Health Care of Fla., Inc., 862 So.2d 745 (Fla. 2d DCA 2003). This is because once privileged information is disclosed, there is no remedy for the destruction of the privilege available on direct appeal. Martin-Johnson, Inc., v. Savage, 509 So.2d 1097, 1099 (Fla.1987). The Estate argues that the trial court's order compels discovery of statutorily privileged medical information. Therefore, we properly have certiorari jurisdiction to review the order.

The next question is whether the order departs from the essential requirements of law. See generally id. To answer this question, we must examine the scope of the privilege of confidentiality between patients and their health care providers. The Florida Legislature has defined this privilege as follows:

Except as otherwise provided in this section and in s. 440.13(4)(c) [dealing with worker's compensation], [a patient's 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 practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient.

456.057(5)(a), Fla. Stat. (2003). Patient information is expressly privileged from disclosure unless a statutory exception applies. The patient confidentiality privilege is "broad and express," and the exceptions to this privilege are limited. Acosta v. Richter, 671 So.2d 149, 154 (Fla.1996). Subsection 456.057(6)¹ provides four exceptions for when otherwise privileged information may be disclosed: (1) to other health care providers involved in treating the patient, (2) if authorized by the patient in writing, (3) if required by subpoena, or (4) in a medical negligence action when the health care provider is or reasonably expects to be named as a defendant. Acosta, 671 So.2d at 155-56.

The "major purpose" of the statute creating this privilege is to "restrict a physician from disclosing patient information." Id. at 154. The privilege protects the patient's interest in keeping the details and nature of his medical treatment confidential without fear of later disclosure by the one in whom he has placed his trust. In Royal, 826 So.2d 332, this court recognized a competing interest that members or co-employees of a professional association or partnership be allowed to discuss a pending lawsuit. In Royal, Mr. Harnage, as personal representative of his wife's estate, filed a medical malpractice wrongful death action against the Watson Clinic and its employee and partner, Dr. Royal. The estate did not file suit against Dr. Letson, a former employee of the Watson Clinic who had also treated Mrs. Harnage. The trial court issued an order prohibiting contact between Dr. Letson and the defendants—the Watson Clinic and Dr. Royal. This court recognized the importance of allowing employers to speak with their employees about information obtained in the course of employment and endeavored to find an exception that would acknowledge this concern. Under the facts of Royal, the medical negligence exception did not fit. The medical negligence exception allows a physician to disclose patient information "to attorneys, experts, and other individuals necessary to defend the physician in a medical negligence action in which the physician is or expects to be a defendant." Lemieux, 862 So.2d at 748. But, Dr. Letson was not a defendant and did not reasonably expect to be named as a defendant. So, Royal attempted to use the reasoning of another exception to allow the Watson Clinic and Dr. Royal to have discussions with former employee Dr. Letson. Royal pointed to the exception for disclosure to other health care providers involved in treating the patient—reasoning that because this exception allowed Dr Royal and Dr. Letson and other health care providers to discuss the patient's medical information at the time of the operation, the filing of a lawsuit did not diminish their ability to discuss patient information.

This court later suggested, in Lemieux, that this type of reasoning had only "superficial logic" for two reasons: (1) because the exception for discussion among health care providers involved in treatment is intended to allow "only health care providers currently involved in the care and treatment of the patient to share information about the patient's medical condition" and (2) because the exception for discussion among health care providers involved in treatment, unlike the medical negligence exception, does not allow for disclosure to attorneys, experts, or other individuals necessary for a defense. 862 So.2d at 749; see also Knittel v. Beverly Health & Rehab. Servs., Inc., 863 So.2d 1279, 1281 (Fla. 2d DCA 2004). However, the result in Royal, based primarily on this court's underlying concern for protecting an employer's interest in speaking with its employees or agents, is still correct. Significantly, in Lemieux, the inpatient rehabilitation center defendant was not seeking to have ex parte discussions about a patient with its former or current employees, but with "two physicians who ha[d] no relation to the facility at all and one physician who simply ha[d] privileges there." 862 So.2d at 751. In Lemieux, there was no underlying concern for the ability of employers to speak with their current and former employees. Lemieux mentioned another factor that...