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
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
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