December 21, 2012 –
Supreme Court rules some health practitioners cannot meet with their attorney prior to deposition

On December 20, the Supreme Court of Florida issued its opinion in Ramsey Hasan v. Lanny Garvar, D.M.D., et al. The opinion relates to discovery in a medical malpractice action Hasan filed against Dr. Garvar.

At issue is the Florida physician-patient confidentiality statute found in Section 456.057(8), Florida Statutes, which provides in pertinent part:

This case interprets a statutory provision that addresses medical records created by most health care practitioners licensed by the Florida Department of Health.

It is not clear, at this time, whether this opinion will impact discussions regarding records created in licensed health care facilities. For more information, please contact Bruce Lamb, leader of Gunster’s health law practice.

The case

After being treated by Dr. Garvar, Hasan sought treatment by Jennifer Schaumberg, D.M.D. He then filed suit against Dr. Garvar for allegedly failing to correctly diagnose and treat his dental condition. During the process of scheduling Dr. Schaumberg’s deposition, Hasan leamed that Dr. Schaumberg’s insurance company had retained an attomey to consult with Dr. Schaumberg and conduct a predeposition conference with her. Hasan sought a protective order from the court to prohibit this predeposition conference as Dr. Schaumberg and Dr. Garvar had the same insurance carrier.

The trial court denied Hasan’s motion and an appeal was filed with the Fourth District Court of Appeal. The Fourth District found that the predeposition conference was permissible because the trial court had entered an order prohibiting Schaumberg and her attomey from discussing privileged medical information pertaining to Hasan.

The appeal to the Supreme Court followed, with Florida’s high court finding that an ex parte predeposition meeting is prohibited, irrespective of whether the attorney and physician claim they will only discuss nonprivileged matters. The Supreme Court held that the plain meaning of the statute prohibited the contemplated predeposition conference between the practitioner and her attomey.

Although the factual scenario presented was colored by the fact that the defendant practitioner and Dr. Schaumberg had the same insurance company, the Supreme Court’s opinion was not limited to that factual scenario.

Dr. Garvar had contended that Schaumberg should be able to speak with her attomey in regard to concems and issues unrelated to the care and treatment of the patient, including the following:

The Supreme Court held that the insurance company was attempting to “foster an environment conducive to inadvertent disclosures of privileged information … ”

The Court concluded that Section 456.057(8) creates a broad and expansive physician-patient privilege of confidentialitY that prohibits ex parte meetings between non-party treating physicians and others outside the confidential relationship — whether or not they intend to discuss privileged or non-privileged matters — without measures to absolutely to protect the patient and the privilege.

Justices Polston and Canady dissented in the 5-2 ruling, with Polston writing the dissenting opinion.

Read the entire decision: Ramsey Hasan v. Lanny Garvar, D.M.D. (Supreme Court of Florida, 12/20/12)

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