Hasan v. Garvar
2012 WL 6619334, 108 So. 3d 570, 37 Fla. L. Weekly Supp. 769 (2012)
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Rule of Law:
The Florida physician-patient confidentiality statute, § 456.057(8), broadly prohibits ex parte communications between a patient's nonparty treating physician and an attorney selected and provided by the defendant's insurance company, even if the parties claim they will discuss only non-privileged matters, to safeguard against inadvertent disclosure of confidential patient information.
Facts:
- Ramsey Hasan filed a medical malpractice action against Lanny Garvar, D.M.D., alleging Garvar’s failure to diagnose and treat his dental conditions caused severe and permanent physical and emotional damage.
- After receiving treatment from Garvar, Hasan sought medical treatment from Jennifer Schaumberg, D.M.D., an oral and maxillofacial surgeon.
- OMSNIC, Garvar's insurer, also insured Dr. Schaumberg, who was not a party in the underlying malpractice action against Garvar.
- OMSNIC retained an attorney to consult with Dr. Schaumberg and conduct an ex parte private pre-deposition conference with her.
- Hasan learned that OMSNIC had selected and paid for an attorney to meet with Dr. Schaumberg.
- The attorney originally retained by OMSNIC for Dr. Schaumberg later joined the law firm representing Garvar; subsequently, OMSNIC retained another law firm to represent Dr. Schaumberg.
Procedural Posture:
- Ramsey Hasan filed a medical malpractice action against Lanny Garvar, D.M.D., and his dental practice in a trial court.
- Hasan moved for a protective order to prohibit an ex parte pre-deposition conference between Dr. Schaumberg and the attorney provided by OMSNIC.
- The trial court denied Hasan’s motion, but included a provision prohibiting discussion of privileged medical information.
- Hasan filed a petition for a writ of certiorari with the Fourth District Court of Appeal (an intermediate appellate court), seeking to reverse the trial court’s order.
- The Fourth District Court of Appeal denied Hasan’s petition and, in a full opinion, approved the trial court's action.
- Ramsey Hasan sought review in the Florida Supreme Court, claiming direct conflict with Acosta v. Richter and decisions from the First District Court of Appeal.
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Issue:
Does Florida Statute § 456.057(8) prohibit ex parte pre-deposition conferences between a patient's nonparty treating physician and an attorney selected and paid for by the defendant's insurance company when the physician is not, and does not reasonably expect to be, named as a defendant?
Opinions:
Majority - Lewis, J.
Yes, Florida Statute § 456.057 prohibits ex parte meetings between a patient's nonparty treating physician and an attorney selected and provided by the defendant's insurance company, even with assurances that only non-privileged matters will be discussed. The Court based its decision on the plain meaning and legislative history of section 456.057, which was broadened in 1988 to create a broad physician-patient privilege, as affirmed in Acosta v. Richter. The statute permits disclosure only in limited, specific circumstances (patient authorization, subpoena, or when the health care provider expects to be a defendant), none of which applied here, and the nonparty physician exception does not apply to a physician who is not, and does not expect to be, named as a defendant. The Court reiterated that such ex parte conferences are "pure sophistry" as they compromise patient confidentiality and create an environment conducive to inadvertent disclosures, even if an attorney claims they will only discuss non-privileged matters. It also reaffirmed that the statute does not violate a physician's First Amendment rights to free speech or counsel, as physicians can discuss privileged information if they become parties to an action or through proper discovery channels. This ruling quashed the Fourth District's decision and approved those of the First District in Dannemann v. Shands Teaching Hospital & Clinics, Inc. and Hannon v. Roper.
Dissenting - Polston, C.J.
No, the Florida physician-patient confidentiality statute does not prohibit a nonparty treating physician from consulting with an attorney provided by her insurance, especially when a court order specifically prohibits the disclosure of confidential patient information. Chief Justice Polston argued that the Florida Supreme Court lacked conflict jurisdiction because the Fourth District properly distinguished prior cases like Dannemann, Hannon, and Acosta, noting that those cases involved ex parte conferences with the defendant's attorney or allowed discussion of privileged information, whereas here, the attorney was the physician's own attorney and the court order expressly prohibited discussion of privileged information. The dissent asserted that the majority wrongfully assumes ethical violations will occur, disrespecting professionals. It further contended that the majority's broad ruling improperly prohibits nonparty physicians from obtaining any legal counsel, even from independently hired lawyers, which violates the First Amendment protection of commercial speech between a lawyer and client, as recognized in Bates v. State Bar of Arizona.
Analysis:
This case significantly reinforces the broad scope of physician-patient confidentiality in Florida, emphasizing protection against any potential for inadvertent disclosure of patient information. By extending the prohibition of ex parte communications to attorneys provided by a defendant's insurer, even for nonparty physicians, the Court closed a potential loophole that could undermine the statutory privilege and its legislative intent. Future cases will likely see heightened scrutiny of any communication attempts outside formal discovery processes, ensuring patient privacy remains paramount, and this ruling may impact how insurance companies manage defense and physician representation in medical malpractice suits.
