Lee Mem'l Health System v. Smith

• Decision Date: 28 January 2011
• Docket Number: No. 2D10–1887.,2D10–1887.
• Citation: 56 So.3d 808
• 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

56 So.3d 808

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. 2D10–1887.

District Court of Appeal of Florida, Second District.

Jan. 28, 2011.

Richard R. Garland and R. Lainie Wilson Harris of Dickinson & Gibbons, P.A., Sarasota, for Petitioner.Craig R. Stevens and Chad T. Brazzeal of Morgan & Morgan, P.A., Fort Myers, for Respondents.WALLACE, Judge.

Jeffrey Smith and Melissa Smith filed an action against Lee Memorial Health System, d/b/a HealthPark Medical Center, for alleged medical malpractice in the care and treatment of their minor child. Lee Memorial sought a protective order to prohibit the Smiths' counsel from having communications outside the presence of Lee Memorial's counsel with the child's treating physicians who are employed by Lee Memorial. The circuit court entered an order denying the requested protective order, and Lee Memorial petitions for a writ of certiorari to quash the circuit court's order. We conclude that Florida Rule of Professional Conduct 4–4.2 does not limit the Smiths' attorneys from communicating with the child's treating physicians despite the treating physicians' employment by Lee Memorial. It follows that the circuit court did not depart from the essential requirements of the law in declining to enter the requested protective order. Accordingly, we deny the petition for writ of certiorari.

I. THE FACTS AND PROCEDURAL BACKGROUND

In July 2007, the Smiths' daughter was born prematurely in a hospital operated by Lee Memorial. The child was immediately admitted to the hospital's Neonatal Intensive Care Unit (NICU). While in the NICU, the child received neonatal parenteral nutrition through a central venous line.

On August 31, 2009, the Smiths filed a medical malpractice action on behalf of their daughter against Lee Memorial. In their complaint, the Smiths alleged that on or about July 25, 2007, the amount of vitamins and trace elements in the nutritional solution given to their daughter was improperly calculated. The Smiths alleged that as a result of this improper calculation, their daughter received an overdose of trace elements that caused her to suffer a variety of serious, permanent injuries. The injuries alleged in the complaint included permanent neurological damage, lack of normal head growth, developmental delay, spastic quadriparetic cerebral palsy, and visual inattentiveness.

In its answer to the complaint, Lee Memorial admitted that it had fallen below the standard of care in the preparation of the nutritional solution. But Lee Memorial also denied that its failure to comply with the standard of care had caused any injury to the Smiths' daughter. Lee Memorial also asserted eighteen affirmative defenses.

The child receives care and treatment from a pediatric neurologist and several other physicians who are employed by Lee Memorial.¹ In November 2009, the Smiths moved for a protective order precluding counsel for Lee Memorial “from having ex parte communication[s] with [the child's] current treating healthcare providers [that are] employed by Lee Memorial Health System.” On January 20, 2010, the circuit court granted the protective order sought by the Smiths. Subsequently, this court granted Lee Memorial's petition for writ of certiorari and quashed the protective order. Lee Mem'l Health Sys. v. Smith, 40 So.3d 106 (Fla. 2d DCA 2010).

Shortly after the circuit court granted the Smiths' requested protective order, Lee Memorial filed its own motion for protective order. Lee Memorial sought “an [o]rder prohibiting legal counsel for the [Smiths] from having ex parte communications with [the child's] current treating healthcare providers that are employed by Lee Memorial Health System.” In support of its motion, Lee Memorial argued that rule 4–4.2 prohibited the Smiths' counsel from communicating with any of the child's treating physicians who are also employed by Lee Memorial without its counsel's consent. After a hearing, the circuit court denied the motion. Lee Memorial's petition for writ of certiorari followed.

II. THE STANDARD OF REVIEW

“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.’ ” Lee Mem'l Health Sys., 40 So.3d at 107 (alteration in original) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)). The second and third parts of this test are jurisdictional:

[A] petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before this court has power to determine whether the order departs from the essential requirements of the law. If the jurisdictional prongs of the standard three-part test are not fulfilled, then the petition should be dismissed rather than denied.

Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995).

III. DISCUSSION

On the issue of irreparable harm, Lee Memorial argues that the circuit court's “order has the effect of allowing release of unauthorized and potentially damaging statements, including in the nature of ‘cat-out-of-the-bag’ material that cannot be remedied by appeal following trial.” Lee Memorial also points to its admission of a failure to meet the applicable standard of care as a factor rendering the prejudice of unguarded communications by its employees with the Smiths' counsel as especially acute. Finally, Lee Memorial suggests that the circuit court's refusal to enter the protective order has frustrated Lee Memorial's effort “to protect itself from the danger of unfair exposure to potential additional liability, which protection is embodied in Florida Rule of Professional Conduct 4–4.2.”

The Smiths do not make a persuasive response to Lee Memorial's arguments on the issue of irreparable harm. It is difficult for this court to assess the potential prejudice to Lee Memorial—if any—that may result if it is unable to limit and monitor all communications between its employee physicians and the Smiths' counsel. Nevertheless, we conclude that review by certiorari is appropriate here because orders of the type under review have the potential to result in the disclosure of privileged information and an interference with the attorney-client relationship. See AlliedSignal Recovery Trust v. AlliedSignal, Inc., 934 So.2d 675, 677 (Fla. 2d DCA 2006); Estate of Stephens v. Galen Health Care, Inc., 911 So.2d 277, 279 (Fla. 2d DCA 2005); Lemieux v. Tandem Health Care of Fla., Inc., 862 So.2d 745, 747–48 (Fla. 2d DCA 2003); Hasan v. Garvar, 34 So.3d 785, 786–87 (Fla. 4th DCA 2010).

We turn now to the question of whether the circuit court's order departs from the essential requirements of the law. Neither of the parties has directed us to any cases directly on point, and our independent research has not disclosed any. The absence of any authority on point requires an examination of the question presented in light of both the text and the rationale of rule 4–4.2.

Rule 4–4.2(a) provides, in pertinent part, as follows: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.” Here, Lee Memorial asserted “that [the Smiths'] counsel will attempt to communicate with [the child's] treating physicians employed by [Lee Memorial] and represented by counsel for [Lee Memorial] outside the presence of [its] counsel.” It argued that because the treating physicians were employees of Lee Memorial, they were persons represented by Lee Memorial's counsel within the meaning of the rule 4–4.2. Thus communications by the Smiths' counsel with the employee treating physicians—absent consent from Lee Memorial's attorneys—would be a violation of the rule.

The Smiths respond that rule 4–4.2 does not apply here because their counsel are not seeking to communicate with any Lee Memorial employees involved in the incident that is alleged to have resulted in the child's injuries. Instead, counsel propose to communicate only with Lee Memorial employee health care providers involved in the treatment of the child. The Smiths conclude that to prohibit such contacts absent consent from Lee Memorial would have two deleterious consequences. First, it would improperly undermine the relationship between the Smiths and their counsel by making it impossible for counsel to speak with the child's treating physicians. Second, it creates a legal paradox whereby the Smiths can speak to their child's treating physicians, but counsel—their duly authorized legal representatives—cannot.

Lee Memorial replies that “rule 4–4.2 does not contain any exceptions relating to the substance of what a current employee may communicate.” Instead, Lee Memorial argues that the rule requires that counsel be present during the communication unless consent of opposing counsel is obtained. But the scope of the rule is not as broad as Lee Memorial would have it. First, as the comment to rule 4–4.2 explains, the prohibition against communicating with members of a represented organization is applicable only to three categories of persons or employees: (1) those who supervise, direct, or regularly consult with the organization's lawyer concerning the matter; (2) those who have the authority to obligate the organization with respect to the matter; or (3) those whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or...