Royal v. Harnage
| Decision Date | 05 April 2002 |
| Docket Number | No. 2D01-3559.,2D01-3559. |
| Citation | 826 So.2d 332 |
| Parties | David ROYAL, M.D., and Watson Clinic, L.L.P., a Florida limited liability partnership, Petitioners, v. Isaac "Ike" HARNAGE, as Personal Representative of the Estate of Ruby Harnage, Respondent. |
| Court | Florida District Court of Appeals |
Susan W. Fox and Stephen H. Sears of Macfarlane Ferguson & McMullen, Tampa, for Petitioners.
George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa, for Respondent.
David Royal, M.D., and the Watson Clinic, defendants in a medical malpractice case, seek a common law writ of certiorari to quash a pretrial order that provides: "No party nor representative of any party nor any attorney shall talk to the deponent, G. Douglas Letson, M.D., until after he is sworn to testify for his deposition or at trial, if there is one." The trial court entered this order based upon a finding that the communications were prohibited by the physician-patient privilege established by section 455.667, Florida Statutes (1999).1 We conclude that the statutory physician-patient privilege did not attach to prevent communications between the health care providers involved as defendants in this lawsuit and Dr. Letson, because all three were involved in the treatment of the patient giving rise to the potential malpractice claim. The filing of the lawsuit could not create a privilege where none had previously existed. Because the trial court's order departs from the essential requirements of law and results in a material injury that cannot be corrected on postjudgment appeal, we grant the writ and quash the order.
In July 1999, Ruby Harnage underwent an operation to treat an infection resulting from hip surgery. The operation was performed at the Watson Clinic at the direction of Ms. Harnage's treating physician, Dr. Letson. At that time, Dr. Letson was a general surgeon and an employee of the Watson Clinic. During the surgery and at Dr. Letson's request, Dr. Royal, who is an anesthesiologist and an employee and partner in the Watson Clinic, inserted a catheter through Ms. Harnage's chest to administer anti-biotics. Following the surgery, Ms. Harnage developed internal bleeding, which was allegedly related to the catheter. The bleeding caused a drop in her blood pressure, and she died within a few hours.
Isaac "Ike" Harnage, as Personal Representative of the Estate of Ruby Harnage (the Estate), filed a medical malpractice wrongful death action against Dr. Royal and the Watson Clinic. The complaint alleged that Dr. Royal was negligent in administering the catheter and anesthesia and that the Watson Clinic was vicariously liable for Dr. Royal's conduct and directly liable because it "negligently failed to monitor the technical proficiency of its doctors." In part, the Estate contended that Dr. Royal failed to appropriately evaluate Ms. Harnage before, during, and after the operation. Dr. Letson is not a named defendant in the suit, and no one argues, at least at this stage of the litigation, that he committed any negligent act. By the time the lawsuit was filed, Dr. Letson was no longer employed by the Watson Clinic.
During pretrial discovery, the Estate scheduled Dr. Letson for deposition and sent him a letter instructing him not to speak with anyone at the Watson Clinic or with the opposing attorneys. The attorney for the Watson Clinic objected, and the Estate sought an order from the trial court prohibiting contact between the defendants or their counsel and Dr. Letson prior to Dr. Letson's sworn deposition testimony. The Estate argued that such contact was precluded pursuant to section 455.667, which creates a physician-patient privilege and provides for the confidentiality of medical records. The trial court agreed and entered the order prohibiting any party or any attorney from contacting Dr. Letson prior to his sworn testimony at deposition or trial. The defendants now seek a common law writ of certiorari to quash this order.
We note at the outset of our analysis that, even if the trial court's order were otherwise proper, the language of the order seems unnecessarily broad. It prohibits any lawyer from talking to Dr. Letson about anything prior to a deposition or trial in this case. If read literally, Dr. Letson cannot talk to a lawyer in a social setting about anything. The record reflects that the lawyers defending this case are defending Dr. Letson and the Watson Clinic in a separate, unrelated action. The trial court in this case had no authority to bar discussions between Dr. Letson and his lawyers about the matters involved in the other case. Likewise, the order appears to prevent Dr. Letson from obtaining legal advice from his own lawyer prior to his deposition in this case. We are not inclined to believe that section 455.667 bars all discussion between a health care provider and his or her attorney concerning an upcoming deposition. Dr. Letson, however, is not the petitioner in this case and has not appeared personally to object to the terms of this order as they relate to him.2 Thus, we do not rule upon these matters.
The dispositive question is whether the statutory privilege contained in section 455.667 prohibits the Watson Clinic, Dr. Royal or their counsel from communicating with Dr. Letson, a health care provider involved in Ms. Harnage's treatment and a former employee of the Watson Clinic. The trial court prohibited contact by the defendants and their lawyers because Dr. Letson is not a defendant in the malpractice litigation and not likely to become a defendant. See § 455.667(6). Even if Dr. Letson is unlikely to be sued, we conclude that the statutory privilege does not support this prohibition under these circumstances.
The recent origins and the purposes of section 455.667 are discussed at length in Acosta v. Richter, 671 So.2d 149 (Fla.1996). This statute "provides for a broad physician-patient privilege of confidentiality for a patient's medical information and a limited exception to the privilege for disclosure by a defendant physician in a medical negligence action in order for the physician to defend herself." 671 So.2d at 150. The medical negligence exception is contained in section 455.667(6). That exception provides:
(b) Except in a medical negligence action or administrative proceeding when a health care practitioner or 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 practitioners and 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.
In practical terms, the medical negligence...
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