Lee Mem'l Health System D/b/a Healthpark Med. Ctr. v. Smith, 2D10-741.

• Decision Date: 16 July 2010
• Docket Number: No. 2D10-741.,2D10-741.
• Citation: 40 So.3d 106
• Parties: LEE MEMORIAL HEALTH SYSTEM d/b/a Healthpark Medical Center, Petitioner,v.Jeffrey SMITH and Melissa Smith, individually, and as parents and natural guardians of Kiarra Summer Smith, a minor, Respondents.
• Court: Florida District Court of Appeals

40 So.3d 106

LEE MEMORIAL HEALTH SYSTEM d/b/a Healthpark Medical Center, Petitioner,v.Jeffrey SMITH and Melissa Smith, individually, and as parents and natural guardians of Kiarra Summer Smith, a minor, Respondents.

No. 2D10-741.

District Court of Appeal of Florida Second District.

July 16, 2010.

Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, and Douglas B. Lumpkin of Lumpkin & Haskins, P.A., Sarasota, for Petitioner.

Craig R. Stevens and Chad T. Brazzeal of Morgan & Morgan, P.A., Fort Myers, for Respondents.

SILBERMAN, Judge.

Lee Memorial Health System (LMHS) seeks certiorari review of the order granting Jeffrey and Melissa Smith's pretrial motion for protective order and prohibiting LMHS from having certain ex parte communications with its employee physicians. The question we must decide today is whether the circuit court departed from the essential requirements of the law by relying on the physician-patient privilege in section 456.057(8), Florida Statutes (2009), to preclude communication between LMHS and its physicians. We conclude that the physician-patient privilege does not apply to LMHS's communications with its employee physicians because such communications are not “disclosures” that trigger the privilege. Accordingly, we grant the petition and quash the order on review.

The Smiths filed the underlying medical malpractice action against LMHS asserting that LMHS provided negligent care and treatment to their infant daughter, Kiarra, in July 2007 which caused her to suffer permanent injuries. In its answer, LMHS admitted that by and through its employees and agents it fell below the standard of care, but it denied that those failures caused the injuries to Kiarra. Since July 2007 Kiarra has received follow-up medical care and treatment from several physicians employed by LMHS. In November 2009 the Smiths filed a motion for protective order seeking to prohibit LMHS and its legal counsel from having ex parte communications with Kiarra's current treating physicians who were employed by LMHS.

At the hearing on the Smiths' motion, the Smiths argued that the physician-patient privilege prohibits LMHS's current treating physicians from discussing Kiarra's medical treatment with LMHS. In response, LMHS argued that, under Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So.2d 277 (Fla. 2d DCA 2005), communication among the hospital representative, its lawyers, and its employees is not a violation of the physician-patient privilege.

The circuit court issued an order granting the motion for protective order and prohibiting LMHS from having ex parte communication with treating physicians employed by LMHS about the post-injury treatment Kiarra received. The court determined that the physician-patient privilege prohibited these type of ex parte communications. Additionally, the court stated that Estate of Stephens did not apply to allow the ex parte communications between LMHS and its employee physicians because the communications would not concern the events giving rise to the malpractice complaint.

In order to merit certiorari relief, a discovery order must “depart [ ] from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). While the effect of orders restricting allegedly privileged pretrial communications between a hospital and physician is difficult to assess, courts have repeatedly viewed such orders as resulting in material injury of an irreparable nature for purposes of certiorari review. Royal v. Harnage, 826 So.2d 332, 337 (Fla. 2d DCA 2002) (citing Alachua Gen. Hosp., Inc. v. Stewart, 649 So.2d 357 (Fla. 1st DCA 1995); Pub. Health Trust of Dade Cnty. v. Franklin, 693 So.2d 1043 (Fla. 3d DCA 1997); Manor Care of Dunedin, Inc. v. Keiser, 611 So.2d 1305 (Fla. 2d DCA 1992)).

The only question that remains for us to consider then is whether the order in this case departed from the essential requirements of the law. The answer to this question is determined by whether the circuit court properly applied the physician-patient privilege in section 456.057(8) to preclude the ex parte communications at issue. Section 456.057(8) sets forth a physician-patient privilege limiting the disclosure of information provided “to a health care practitioner by a patient in the course of the care and treatment of such patient” with limited exceptions not applicable in this case.

While the purpose of the statute is to protect a patient's right to confidentiality of his or her medical treatment, there is a competing interest that employers be permitted to discuss a pending lawsuit with its employees. Estate of Stephens, 911 So.2d at 280. In reconciling those competing interests, this court has determined that section 456.057(8) does not apply to communications between a hospital and its employee physicians because no “disclosure” occurs when a hospital and its employees discuss information obtained in the course of employment. Estate of Stephens, 911 So.2d at 282. The court explained its reasoning as follows:

Section 456.057(6) ¹ states that “information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential.” The statute then goes on to discuss the exceptions to confidentiality, stating that patient information “may be disclosed only” when an exception applies. According to the plain language of the statute, a court reaches the question of whether there is an exception only upon finding

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