Zawistowski v. Michael Gibson & Geico Gen. Ins. Co.

• Decision Date: 27 April 2022
• Docket Number: 2D21-1703
• Citation: Zawistowski v. Michael Gibson & Geico Gen. Ins. Co., 337 So.3d 901 (Fla. App. 2022)
• Parties: Michael ZAWISTOWSKI and Lori Halteman, Petitioners, v. Michael GIBSON and GEICO General Insurance Company, Respondents.
• Court: Florida District Court of Appeals

337 So.3d 901

Michael ZAWISTOWSKI and Lori Halteman, Petitioners,

v.Michael GIBSON and GEICO General Insurance Company, Respondents.

No. 2D21-1703

District Court of Appeal of Florida, Second District.

April 27, 2022

Anthony J. Russo and Mihaela Cabulea of Butler Weihmuller Katz Craig LLP, Tampa, for Petitioners.

K. Mitch Espat of Espat & Johnson, P.A., Tampa, for RespondentMichael Gibson.

No appearance for remaining Respondent.

VILLANTI, Judge.

PetitionersMichael Zawistowski and Lori Halteman seek certiorari review of two interlocutory orders compelling the production of records pertaining to Halteman's emergency medical treatment arising from a motor vehicle accident in which RespondentMichael Gibson was also injured.Because the trial court departed from the essential requirements of the law by failing to conduct an in camera review of the documents prior to their disclosure to the Respondents, we grant the petition, quash the two orders on review, and remand to the trial court to conduct an in camera review of the records to ensure only Halteman's medical information that is relevant to the proceedings below is disclosed.

I.

On March 13, 2018, Halteman was driving a vehicle owned by Zawistowski in Hillsborough County when she struck another vehicle driven by Gibson.Halteman was found unconscious at the accident scene by law enforcement and emergency responders and was airlifted to St. Joseph's Hospital in Tampa.Gibson alleges that Halteman was intoxicated at the time of the accident, but law enforcement did not perform a breathalyzer or field sobriety test.Gibson argues that it was Halteman's lack of consciousness that precluded law enforcement from testing for any impairment.

Gibson subsequently filed a four-count lawsuit alleging negligence against Halteman, vicarious liability and negligent entrustment against Zawistowski, and an uninsured motorist claim against Geico, Gibson's uninsured motorist insurance carrier.During the course of the litigation, Gibson moved to amend his complaint to include a count for punitive damages against Halteman on the basis of her alleged impairment at the time of the accident.In pursuit thereof, Gibson sought nonparty discovery from Hillsborough County Fire and Rescue(HCFR) and St. Joseph's Hospital.Specifically, Gibson filed a notice of production via subpoena duces tecum to St. Joseph's that requested Halteman's medical records "from the date of loss until the date of discharge."From HCFR, Gibson sought postaccident medical records via a video deposition of HCFR's records custodian.Halteman filed an objection and moved for protective orders as to both discovery requests, alleging medical privacy concerns with regard to St. Joseph's records and relevancy and privacy concerns with regard to HCFR's records.Following a hearing, the trial court denied Halteman's motion for protective order and objection to production of her medical records and ordered Gibson to limit the records request to HCFR and St. Joseph's to those generated during the time Halteman was transported and admitted, respectively, due to the accident.

Halteman moved for reconsideration of the trial court's ruling and for in camera inspection of her medical records, renewing her constitutional privacy rights argument and further alleging that her medical condition was not at issue in the litigation.Gibson responded that Halteman put her medical condition at issue by testifying at her deposition that (1)she had no recollection of the accident; (2)she had no recollection of being involved in other motor vehicle accidents in the minutes before the accident at issue; and (3)she had no recollection of the accident involving Gibson.Gibson further argued that Halteman put her medical condition at issue because, as she testified at her deposition, she has a history of drug and alcohol addiction and at the time she traveled to Florida, she was awaiting sentencing for a DUI charge in Pennsylvania.The trial court denied Halteman's motion for reconsideration and in camera inspection of medical records.

II.

To obtain certiorari relief, a party must "demonstrate that the contested order constitutes ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,](3) that cannot be corrected on postjudgment appeal.’ "Hett v. Barron-Lunde , 290 So. 3d 565, 569(Fla. 2d DCA2020)(alteration in original)(quotingBd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC,99 So. 3d 450, 454(Fla.2012) )."The last two elements are jurisdictional and must be analyzed before the first element."Tanner v. Hart , 313 So. 3d 805, 807(Fla. 2d DCA2021)."The threshold question that must be reached first is whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm."Rodriguez v. Miami-Dade County , 117 So. 3d 400, 404(Fla.2013)."Orders that require disclosure of confidential medical information meet the irreparable harm requirement for certiorari review because once such information is improperly disclosed, the harm caused by that disclosure cannot be undone."Paylan v. Fitzgerald,223 So. 3d 431, 434(Fla. 2d DCA2017)(citingUSAA Cas. Ins. Co. v. Callery , 66 So. 3d 315, 316(Fla. 2d DCA2011) ).A finding of irreparable harm not curable on appeal is justified when an opposing party to a lawsuit seeks medical or other records implicating one's constitutional right to privacy.James v. Veneziano , 98 So. 3d 697, 698(Fla. 4th DCA2012).

In addition to establishing...