Hasan v. Garvar, 2012 WL 6619334 (Fla. Dec. 20, 2012)
Florida’s patient confidentiality statute prohibits nonparty treating physician from meeting with counsel for any purpose including the discussion of non-privileged matters.
This case arises out of a medical malpractice action brought by a dental patient against the dentist and dental practice. The patient consulted with an oral surgeon after receiving treatment from the dentist. The oral surgeon was not a party to the malpractice action but was scheduled for a deposition. The patient learned that the oral surgeon’s insurer had retained counsel for a pre-deposition ex parte conference with the oral surgeon. The patient moved for a protective order under the authority of § 456.057(8), Florida Statutes, asserting that the patient confidentiality statute prohibited such meetings irrespective of whether the physician and attorney claim that they will discuss only non-privileged matters.
The oral surgeon contended that the statute and construing case law did not prohibit such a meeting and that the prohibition of such a meeting would violate the physician’s common law right to counsel and First Amendment right to freedom of speech.
The circuit court denied the patient’s motion, and the patient filed a petition for writ of certiorari to the Fourth District Court of Appeal, which was also denied. The patient sought review by the Florida Supreme Court asserting that the Fourth DCA’s decision conflicted with the Florida Supreme Court’s holding in Acosta v. Richter, 671 So. 2d 149 (Fla. 1996), and decisions of the First DCA.
The Court granted review and quashed the decision of the Fourth DCA. The Court ruled that § 456.057 prohibited a nonparty treating physician from having an ex parte meeting with an attorney selected and provided by the defendant’s insurance company regardless of the nature of the information shared.
The Court based its ruling on the legislative history and the statute’s “simple, direct language” which affords broad protections in favor of physician-patient confidentiality. The Court noted that the statute initially did not prevent an ex parte meeting such as the one sought in this case, and the Court’s earlier decisions construing the statute reflected the limited protections provided by the statute. The Legislature subsequently broadened the statutory protections for physician-patient confidentiality, and later decisions enforced the broad protections provided by the statute. The Court noted that Acosta affirmed that there are very limited exceptions to the protections provided under the statute, and ex parte meetings between the treating physician and “outsiders to the patient-health care provider relationship” were simply not permitted. Thus, a meeting between the nonparty treating physician and counsel provided by the defendant’s insurer would invade the protections provided by the statute.
The Court rejected the notion that the statute violated a physician’s right to free speech, because physicians may discuss confidential patient information if they become parties to a medical negligence action. The Court reaffirmed that the statute does not infringe upon a physician’s right to free speech or right to counsel, because it allows for such meetings if a physician becomes a party to a legal action and provides for disclosures if properly protected. The Court also rejected as “pure sophistry” that ex parte meetings would be permissible to discuss general questions about legal procedures and non-privileged concerns. Rather, the Court found such meetings would foster an environment conducive to inadvertent disclosures and thus would violate the purpose and spirit of the statute.
The Court’s ruling prohibits ex parte meetings between a nonparty treating physician and “others outside the confidential relationship” regardless of whether they intend to discuss privileged or non-privileged matters. Chief Justice Polston’s dissent asserts that the holding is “so breathtakingly broad that it even forbids the nonparty physician from consulting a lawyer that she may choose to hire independently.”
Given the broad and expansive interpretation of the statute by the Florida Supreme Court, and given the Court’s rejection of the nonparty treating physician’s right to counsel or freedom of speech, plans are underway to amend the statute.