• Supreme Court Rules Some Health Practitioners Cannot Meet With Their Attorney Prior To Deposition
  • December 28, 2012 | Author: Bruce D. Lamb
  • Law Firm: Gunster - Tampa Office
  • On December 20, the Supreme Court of Florida issued its opinion in Ramsey Hasan v. Lanny Garvar, D.M.D., et al. The opinion relates to discovery in a medical malpractice action Hasan filed against Dr. Garvar.

    At issue is the Florida physician-patient confidentiality statute found in Section 456.057(8), Florida Statutes, which provides in pertinent part:

    (8) 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. (emphasis added)

    This case interprets a statutory provision that addresses medical records created by most health care practitioners licensed by the Florida Department of Health.

    It is not clear, at this time, whether this opinion will impact discussions regarding records created in licensed health care facilities.

    The case

    After being treated by Dr. Garvar, Hasan sought treatment by Jennifer Schaumberg, D.M.D. He then filed suit against Dr. Garvar for allegedly failing to correctly diagnose and treat his dental condition. During the process of scheduling Dr. Schaumberg’s deposition, Hasan leamed that Dr. Schaumberg’s insurance company had retained an attomey to consult with Dr. Schaumberg and conduct a predeposition conference with her. Hasan sought a protective order from the court to prohibit this predeposition conference as Dr. Schaumberg and Dr. Garvar had the same insurance carrier.

    The trial court denied Hasan’s motion and an appeal was filed with the Fourth District Court of Appeal. The Fourth District found that the predeposition conference was permissible because the trial court had entered an order prohibiting Schaumberg and her attomey from discussing privileged medical information pertaining to Hasan.

    The appeal to the Supreme Court followed, with Florida’s high court finding that an ex parte predeposition meeting is prohibited, irrespective of whether the attorney and physician claim they will only discuss nonprivileged matters. The Supreme Court held that the plain meaning of the statute prohibited the contemplated predeposition conference between the practitioner and her attomey.

    Although the factual scenario presented was colored by the fact that the defendant practitioner and Dr. Schaumberg had the same insurance company, the Supreme Court’s opinion was not limited to that factual scenario.

    Dr. Garvar had contended that Schaumberg should be able to speak with her attomey in regard to concems and issues unrelated to the care and treatment of the patient, including the following:

    1. General questions about deposition and trial procedure including the right to refuse to answer questions and the right to protect privileged or personal information;

    2. The potential for legal exposure in the lawsuit as a Fabre defendant or in a subsequent indemnity action; and

    3. The potential of providing testimony that could affect board certification or result in negative media exposure.

    The Supreme Court held that the insurance company was attempting to “foster an environment conducive to inadvertent disclosures of privileged information ... ”

    The Court concluded that Section 456.057(8) creates a broad and expansive physician-patient privilege of confidentialitY that prohibits ex parte meetings between non-party treating physicians and others outside the confidential relationship — whether or not they intend to discuss privileged or non-privileged matters — without measures to absolutely to protect the patient and the privilege.

    Justices Polston and Canady dissented in the 5-2 ruling, with Polston writing the dissenting opinion.