Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Florida Supreme Court Prohibits Physician Discussions with Attorneys

Francys C. Martin, Esq.
Claims and Litigation Coord.
UF HSC Self‐Insurance Program
10-2-2 Case Summary: This involved a medical malpractice action by Ramsey Hasan (Ramsey Hasan, v. Lanny Garvar, D.M.D., et all, Respondents. No. SC10‐1361– December 2012) against his dentist, Lanny Garvar, D.M.D., and his dental practice, alleging he failed to diagnose and treat dental issues and a bone infection, resulting in significant damages. As a result of these issues, Hasan presented to an oral and maxillofacial surgeon, Jennifer Schaumberg, D.M.D. for continued care. Schaumberg was not a party to this legal action. Both Garvar and Schaumberg were insured by OMSNIC, which had also retained two separate attorneys to represent each. When scheduling depositions, Hasan discovered that Schaumberg was to have a private pre‐deposition conference with her attorney. Hasan moved for a protective order to stop this conference, which the trial court denied, as did the Fourth District Court of Appeal, stating that a trial court order kept Schaumberg from discussing medical information regarding Hasan, and because she was meeting with her own attorney and not the attorney representing Garvar. Hasan argues that such a pre‐deposition conference violates 456.057(8), Florida Statutes (2009) which provides for physician‐patient confidentiality and prohibits the non‐party physician from speaking to her attorney about Hasan. Garvar argues that 456.057 does not prohibit this type of conference, and further argues that not allowing this type of conference violates the doctor’s common law right to counsel and protections under the First Amendment.   Allegation: Ex parte conference between a nonparty treating physician and an  attorney selected and hired by the defendant’s insurance company violates the protection afforded by Florida’s physician‐patient confidentiality statute as delineated under 456.057 (8), Florida Statutes (2009) leaving the patient without protection from disclosure of information.   Analysis: On December 20, 2012, the Supreme Court of Florida found that 456.057(8), Florida Statutes (2009) prohibits a non‐party physician from discussing patient information with an attorney hired by that physician’s insurance company, citing the statute in part: 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 defend‐ ant, 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. Invoking the plain meaning of the statute, the Supreme Court references whether the physician reasonably expects to be named as a defendant but does not define or further elaborate how that determination is to be made. Nevertheless, it is to be construed narrowly with the primary purpose of the statute always being to protect physician‐ patient privileges. The Supreme Court goes even further to state that, “meetings between a nonparty treating physician and outsiders to the patient‐health care provider relationship are not permitted…even with the representations as to the content of the meeting…” (Emphasis added). This includes counsel hired by the physician’s insurer. They opined that if they held otherwise, insurance companies would seek to hire counsel and circumvent the protection provided by the statute. “Consequently, we hold that section 456.057 prohibits ex parte meetings between a patient’s nonparty treating physician and counsel provided by the defendant’s insurance company…” The Supreme Court also cites Hannon v. Roper, 945 So. 2d 534 (Fla. 1st DCA 2006) wherein the insurer of a non‐party physician retained an attorney to represent him for purposes of a deposition. The Supreme Court agreed with the First District Court of Appeal that 456.057 prohibited such communication, in part because the non‐party physician did not expect to be named as a defend‐ ant. In Dannemann v. Shands Teaching Hospital & Clinics, Inc., 2009 WL 1272330 (Fla. 1st DCA 2009) the First District Court of Appeal again dealt with an insurer hiring counsel for a non‐party physician. The First DCA reiterated its findings in Hannon finding that the statute prohibited this type of communication. With respect to arguments that this is a violation of the non‐party physician’s First Amendment rights, the court found this to be an appropriate balance between the rights of the patient and those of the physician, finding that the physician may discuss protected patient health information with their attorney once they become a party to the action. They make no mention however, of the common law right to counsel, other than to imply that counsel is not necessary as in each of these examples it is a non‐party physician who appears to have no fear of litigation. Further, in this case, it was argued that Schaumberg should be able to speak with her attorney outside of a deposition about legal issues unrelated to the care and treatment, for example, how to appropriately answer deposition questions, the right to refuse to answer questions, etc. The Supreme Court stated that this would, “foster an environment conducive to inadvertent disclosures of privileged information,” and these efforts are, “impermissible.” Conclusion: In a 5‐2 decision, the Florida Supreme Court held that  Florida  Statute  456.057(8)  prohibits  ex parte meetings  between  nonparty  treating  physicians and  others  outside  the  confidential  relationship whether or not they intend to discuss privileged or non‐privileged matters without measures to absolutely protect the patient and the privilege. Notably, the dissent stated that, “The practicing physicians and the lawyers of Florida deserve more respect as professionals who are faithful to their oaths of ethical conduct.” On April 2, 2013, the Senate Rules Committee approved Senate Bill 1792 that seeks, in part, to guarantee treating healthcare providers that are not parties to the legal action the right to consult with an attorney. The bill passed by a vote of 12‐3 and is currently before the Senate.