Phillips v. Ficarra, 91-3328

• Decision Date: 05 May 1993
• Docket Number: No. 91-3328,91-3328
• Citation: 618 So.2d 312
• Parties: 18 Fla. L. Week. D1144 Susan PHILLIPS and David Alan Phillips, Appellants, v. Lorrie Lytton FICARRA, Appellee.
• Court: Florida District Court of Appeals

Page 312

618 So.2d 312

18 Fla. L. Week. D1144

Susan PHILLIPS and David Alan Phillips, Appellants, v. Lorrie Lytton FICARRA, Appellee.

No. 91-3328.

District Court of Appeal of Florida,

Fourth District.

May 5, 1993.

Rehearing Denied June 9, 1993.

Scott J. Feder and Beth F. Bloom of Floyd, Pearson, Richman, Greer, Weil, Brumbaugh & Russomanno, P.A., and Paul M. Bunge, Law Office of Paul M. Bunge, Miami, for appellants.

Richard A. Sherman and Rosemary B. Wilder, Law Offices of Richard A. Sherman, P.A., and Michael A. Robb, Barnett, Clark & Barnard, Fort Lauderdale, for appellee.

WARNER, Judge.

In this appeal from a final judgment in favor of appellant but finding no permanent injury and awarding no damages appellant claims that the trial court erred in excluding the medical records of her treating physician, in allowing another doctor whom she had consulted after her treating physician's death to testify in violation of either the statutory privilege of section 455.241(2) or the discovery rules, and in failing to send back a critical MRI scan to the jury. We reverse as to two points raised.

Appellant was in an accident and felt pain in her back the day after. When it did not subside after two weeks, she was referred to Dr. Leone, an orthopedist. She visited him six times altogether. During her first visit, he did not take x-rays or refer her for an MRI scan because she was pregnant. However, he conducted other tests and recommended therapy. Although she continued to have back pain, her pregnancy prohibited her from further treatment.

After appellant gave birth, she returned to Dr. Leone who repeated the exam and took x-rays, scheduled an MRI, and ordered 22 visits of physical therapy. The doctor indicated that she had a herniated disc which would eventually get worse and need surgery. He offered no further treatment. Appellant scheduled one other visit about two months later but cancelled it when her pain subsided. Six months later she contacted Dr. Leone's office and was informed that he had died. Her attorney arranged for her to see Dr. Smith who had taken over Dr. Leone's patients. She visited Dr. Smith once but chose not to return to him because she did not think he was thorough in his exam. She was then referred to Dr. Beinhaker in August 1991 just before trial whom at trial she considered to be her treating physician.

Two experts testified for appellant. Dr. Kagan interpreted the MRI scan done by Dr. Leone, and Dr. Beinhaker testified as to appellant's current physical condition. He was allowed to testify that he relied on Dr. Leone's records in rendering his opinion but the trial court refused their admission. This was error. The parties had stipulated that the records custodian was not necessary. Therefore, the records were admissible as business records. Section 90.803(6), Fla.Stat.; Thunderbird Drive-In Theatre, Inc. v. Reed, 571 So.2d 1341, 1345 (Fla.4th DCA1990), rev. denied, 577 So.2d 1328 (Fla.1991); Brevard County v. Jacks, 238 So.2d 156, 158-59 (Fla.4th DCA 1970). Because they are used for medical treatment, such records are considered inherently trustworthy unless a challenge is made to their trustworthiness, which was not the case here. Thus, even though Dr. Leone was dead, his medical records could be introduced into evidence by a records custodian under the business record exception to the hearsay rule. As the parties stipulated to waive the custodian's testimony, the records should have been admitted.

This cannot be considered harmless error in this case. Appellee's entire focus in this case was that appellant and her lawyer manufactured this case, and they point to the gaps in treatment by doctors. However, Dr. Leone's records reveal extensive physical therapy and other treatment. While appellant testified to much of this, the jury might well have accorded a much higher degree of credibility to the actual medical records. See Alford v. Meyer, 201 So.2d 489 (Fla.1st DCA 1967), cert. denied, 209 So.2d 671 (Fla.1968). They were necessary to counter the charge that appellant was simply building a case.

Secondly, the trial court allowed Dr. Smith to testify as a defense witness. Appellant had been referred to Dr. Smith after Dr. Leone's death. She saw him once and then went to Dr. Beinhaker. When appellee's counsel became aware of Dr. Smith, he contacted the doctor and asked him to prepare a report on appellant's visit to him. Defense counsel also provided the MRI for Dr. Smith to review. Neither the parties, Dr. Smith, nor the trial court were able to articulate Dr. Smith's status. Appellant claimed at trial that Dr. Smith was an examining physician. Appellee claimed that he was a treating physician. If Dr. Smith were a treating physician, then defense counsel's ex parte communications with Dr. Smith would have violated section 455.241(2), Florida Statutes (1991), which prohibits communications between a doctor and a third party regarding the medical condition of the doctor's patient unless compelled by a subpoena for deposition, evidentiary hearing, or at trial. See West v. Branham, 576 So.2d 381 (Fla.4th DCA 1990), rev. dismissed, 583 So.2d 1034 (1991). However, there is no sanction specified in that section for a violation. (In West we considered a protective order which was entered to prevent a violation from occurring.) Thus, whether to strike the doctor's testimony when it appears that the statute has been violated must be left to the sound discretion of the trial judge. Consideration of the...