In a case decided by the Supreme Court of Florida on December 20, 2012, the Florida Supreme Court decided the issue whether the Florida patient confidentiality statute prohibits a nonparty treating physician from having an ex parte meeting (without the medical malpractice plaintiff or her attorney present) with an attorney selected and provided by a medical malpractice defendant’s insurance company.
The Florida Supreme Court held that the physician-patient confidentiality statute, section 456.057, prohibits such meetings –given the broad protections afforded to patient information by the confidentiality statute and the equally protective judicial precedent with regard to the confidentiality statute, the Florida Supreme Court held that an ex parte meeting such as the one attempted in the case it was deciding is prohibited irrespective of whether the attorney and physician claim they will discuss only non-privileged matters.
Section 456.057(8), Florida Statutes (2009), states, in pertinent 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 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.
In the case before it, the medical malpractice plaintiff had filed a medical malpractice action against his dentist and his dental practice, alleging that the dentist’s failure to diagnose and treat his dental conditions resulted in a bone infection and a worsening of his dental problems, causing severe and permanent physical and emotional damage and causing him to be forced to pay additional dental bills plus other expenses related to his injuries.
The medical malpractice plaintiff had subsequently sought treatment from an oral and maxillofacial surgeon. While in the process of scheduling the subsequent treating surgeon’s deposition in the medical malpractice case, the medical malpractice plaintiff learned that the medical malpractice defendant’s insurance company had retained an attorney to consult with the subsequent treating surgeon to conduct an ex parte private predeposition conference with the subsequent treating surgeon who was not a party in any underlying malpractice lawsuit.
The Florida Supreme Court held that the statutory language and legislative history of Section 456.057(8), Florida Statutes (2009), demonstrate that ex parte meetings between a nonparty treating physician and outsiders to the patient-health care provider relationship are not permitted. The Florida Supreme Court further held that the statute is violated when the counsel who seeks to communicate with the nonparty treating physician is not defense counsel per se, but counsel selected and provided by the defendant’s insurer (“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”).
Source: Ramsey Hasan, Petitioner vs. Lanny Garvar, D.M.D., et al., Respondents. No. SC10-1361.
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