Franklin v. Nationwide Mut. Fire Ins. Co.
| Decision Date | 30 July 1990 |
| Docket Number | No. 90-2,90-2 |
| Parties | 15 Fla. L. Weekly D1952 Alfonso FRANKLIN and Mary Franklin, his wife, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Gerald A. McGill of McGill & McDavid, P.A., Pensacola, for appellants.
Jeffrey A. Cramer, Pensacola, for appellee.
Alfonso Franklin and his wife petition for a writ of certiorari to review the non-final order of the trial court directing Mr. Franklin to execute the medical authorization form annexed thereto and to deliver that authorization to counsel for the defendant within ten days. Finding the order violates section 455.241, Florida Statutes (1989), we quash the order.
The order under review arises out of the discovery process in a suit filed by the petitioners against their insurer, Nationwide Mutual Fire Insurance Company, for damages resulting from an automobile accident. Respondent's "motion for permission to speak with plaintiff's treating and previously treating physicians" recited:
Counsel for Defendant would like to speak with Plaintiff's treating and previously treating physicians to discuss their possible testimony with them prior to any scheduled depositions in this matter. Defendant believes that any patient-physician, statutory or other privilege which might prevent such conversations from taking place has been waived by the filing of this lawsuit and the placing of Plaintiff's physical condition in controversy. Additionally, Defendant believes that all privileges specifically have been waived in this particular case, pursuant to Rule 1.360(b)(2), Fla.R.Civ.P. Because of the recent enactment of Section 455.241, Fla.Stat. (1988), however, the Defendant is in doubt about its rights to discuss matters with Plaintiff's physicians and therefore seeks a ruling from the court prior to the scheduling of such conference.
Petitioners objected to the motion, relying on the plain language of section 455.241 as amended in 1988.
After hearing, the trial court entered an order directing the plaintiff "to execute the medical authorization form annexed to this Order as Exhibit 'A' and to provide the executed medical authorization to counsel for Defendant within ten (10) days of the date of this order." The annexed medical authorization form reads:
Please furnish attorney JEFFREY A. CRAMER, P.O. Box 12108, Pensacola, FL 32590, upon request by him or his authorized representative, any and all medical information, reports, laboratory reports, x-rays, hospital records, clinical records, or hospital abstracts made by you or in your possession, pertaining to treatment furnished me or examinations of me at any time.
You further are authorized to furnish to said attorney, or his representative, copies of any of the above; and permit him to inspect and reproduce any of the same which may be in your possession, discuss these records and my medical condition with him, and give him opinions concerning any of these matters. A copy of this medical authorization is as valid as the original. This authorization is valid until you receive written revocation thereof.
(Emphasis added). The court's rationale for this ruling was stated as follows:
1. Plaintiff, Alfonso Franklin, has placed his physical and mental condition in issue by the filing of this lawsuit for damages from personal injuries arising out of a motor vehicle accident.
2. By so placing his physical and mental conditions in issue, Plaintiff voluntarily has waived any medical privilege created by Section 455.241(2), Fla.Stat. (1988 Supp.).
3. Notwithstanding the limited debate concerning this statute which took place in the Senate Committee on Judiciary-Civil on May 19, 1988, this Court finds that such a privilege never was intended to be used as a trial tactic by which a party may control to his advantage the timing and circumstances of the release of information he inevitably must see revealed at some time. This Court finds the well-reasoned analysis of Judge Jackson in Doe v. Eli Lilly & Company, Inc., 99 F.R.D. 126 (D.D.C.1983), to be persuasive.
4. Defendant also has argued that Plaintiff, Alfonso Franklin, has been examined pursuant to Rule 1.360(b)(2), Fla.R.Civ.P., that his attorneys have requested and obtained a copy of the report of the examining physician and that such a circumstance also constitutes a waiver of any privilege created by Section 455.241, Fla.Stat. (1988 Supp.). Defendant further has argued that Section 455.241, Fla.Stat. (1988 Supp.) is unconstitutional because it conflicts with the Florida Supreme Court's rule-making authority, among other reasons. Because of this Court's above ruling, it is unnecessary to rule on those arguments at this time.
At oral argument, counsel for respondent stated that the medical authorization permitted him to conduct an ex parte interrogation of the plaintiff's physician and even to request the physician to form new opinions not previously held or expressed regarding the patient's medical condition for use in this litigation.
Petitioners primarily object to the portion of the form emphasized above that allows informal ex parte or unilateral discussions between the defendant's counsel and the physicians. They do not object to the production of medical reports by the health care providers nor do they object to the physicians being deposed in accordance with the provisions of the discovery rules in the Florida Rules of Civil Procedure. The focus of their objection is the action of the court compelling them to specifically authorize the ex parte interviews because, they contend, it constitutes a departure from the essential requirements of law in direct violation of the provisions in section 455.241, Florida Statutes (1989), specifically prohibiting the means of discovery so ordered. We agree.
The statutory language contained in section 455.241 does not provide for the automatic waiver of the statutory privilege set forth therein merely by the filing of a lawsuit. Its provisions for obtaining access to a person's medical records and related information were made quite specific by the below emphasized language added by the amendment to that statute in 1988:
(2) Such 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.
This statutory language is abundantly clear on its face. It provides for waiver of confidentiality of covered medical information in only three circumstances:
1) in a medical negligence action, when a health care provider is or reasonably expects to be named as a defendant,
2) by written authorization of the patient, or
3) when compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.
In other words, in all cases other than those where the health care provider is a defendant, unless the plaintiff voluntarily provides a written authorization to the defendant, the defendant's discovery of the privileged matter can be compelled only through the subpoena power of the court with proper notice in accordance with the discovery provisions of the rules of civil procedure. The reference to "proper notice" is unquestionably included to preclude the type of unilateral, ex parte interrogation of a physician permitted by the order under review and envisioned by respondent's counsel. Simply stated, no provision in this statute or the rules of civil procedure authorizes the court to compel the petitioner to execute and deliver a medical authorization for ex parte communications by an opposing party or attorney with the physicians, such as was ordered in this case. Hence, the order is in direct violation of these statutory provisions.
This construction and application of the statute is consistent with the legislative intent reflected in the Senate judiciary committee staff report:
B. Effect of Proposed Changes:
....
The bill amends s. 455.241, F.S., to specify that, in addition to medical records, the medical condition of a patient may not be disclosed to any person other than the patient, the patient's legal representative, or other health care providers involved in the treatment of the patient, except upon written consent of the patient. Further, the bill specifies that information disclosed to a health care practitioner by a patient is confidential and may be disclosed only to other health care providers involved in the care of the patient or by written authorization of the patient or by subpoena. In addition,...
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