Physician Patient Confidentiality

In 1988 the Legislature expanded protection of confidential medical information in Fla. Stat. 456.057 which now states:

(7)(a) Except as otherwise provided in this section

and in s. 440.13(4)(c), such [medical] records may

not be furnished to, and the medical condition of a

patient may not be discussed with, any person other

than the patient or the patient’s legal representative

or other health care practitioners and providers

involved in the care or treatment of the patient,

except upon written authorization of the patient.

* * *

(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.

This amendment stopped the long standing practice of defense lawyers having ex parte conferences with treating physicians of the plaintiff in a medical negligence case.

Physicians are understandably nervous about testifying against a fellow physician in a medical malpractice case even if the testimony is only on the subject of damages. In addition, it is not unusual for treating physicians to have the same malpractice insurance carrier as the defendant physician.

It is not hard to imagine that pressure could easily be brought against a treating physician to be uncooperative with plaintiff’s counsel or to color their testimony if they only hear one side of the story through an ex parte meeting with counsel for the defendant.

The case law has consistently supported a statutory interpretation of §456.057 which precludes that kind of ex parte communication.

Hasan v. Garvar, 37 Fla. L. Weekly S769 (Dec. 20, 2012) presented a unique question to the Supreme Court on this subject. That was a dental malpractice case in which the insurance carrier for the defendant hired a separate lawyer to represent a treating doctor who was not named in the lawsuit and instructed their lawyer to attempt to meet with the treater. The treater had the same malpractice carrier as the defendant.

The trial court denied plaintiff’s motion for protective order and the Fourth District Court of Appeal affirmed holding that the trial court’s order, which precluded the attorney from discussing privileged medical information with the treating doctor, was adequate protection under this statute. Hasan v. Garvar 34 So. 3d 785 (Fla. 4th DCA 2010).

The Supreme Court reversed.

We hold that the physician-patient confidentiality

statute, section 456.057, prohibits such meetings

and we quash the decision of the Fourth District.

Given the broad protections afforded to patient

information by the relevant confidentiality statute,

and the equally protective judicial precedent with

regard to this statute and information, we again

hold that an ex parte meeting such as the one

attempted here is prohibited irrespective of

whether the attorney and physician claim they

will discuss only non-privileged matters.

The Supreme Court essentially found that hiring a lawyer for a treating physician was nothing more than a subterfuge to circumvent the prohibition contained in the statute and made it clear that similar ruses simply will not work.

The statute’s “simple, direct language” coupled

with the legal history of section 456.057, informed

our conclusion that “the primary purpose of the

1988 amendment was to create a physician-

patient privilege where none existed before,

and to provide an explicit but limited scheme for

the disclosure of personal medical information.”

Id. (emphasis supplied); see also West v.

Branham, 576 So. 2d 381, 383 (Fla. 4th DCA

1991) (“[T]he purpose of the statute is to

preserve a patient’s right to confidentiality. . . .

This includes closing the door to the previous

practice of many defense attorneys of meeting

privately or otherwise communicating ex parte

with the plaintiff’s treating physician.” (emphasis

supplied)).

 

The danger posed by ex parte contact by defense counsel with a treating physician is clear and present. The Supreme Court makes it clear that such contact will not be tolerated.

If an ex parte meeting between the nonparty

treating physician and counsel provided by

defendant’s insurer is permitted, then insurance

companies could simply hire counsel to

circumvent the statutory protection. 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, as is

the situation in the case at hand.

 Originally published in March 2013