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Court reversed order for counsel to meet 'ex parte' with treating Dr.

CASE ON POINT: Hassan v. Garvar, SC-10-1361 FLSC (12/20/2012)---So.2d----FL

ISSUE: The relationship between a physician and patient is privileged. That is exactly how it should be! However, in this unusual Florida case there was a concerted effort to bypass that privilege by a defendant's malpractice insurance carrier.

CASE FACTS: Ramsey Hasan filed a medical malpractice suit against, Dr. Lanny Garvar, and his dental practice alleging that Dr. Garvar's failure to diagnose and treat his dental conditions resulted in a bone infection and a worsening of his dental problems, which caused severe and perm anent physical and emotional damage. Specifically, he alleged that he suffered and continues to suffer physical and mental pain, grief, anguish, an inability to lead a normal life, permanent disfigurement, and permanent aggravation of a preexisting condition. He claimed that he incurred additional dental bills plus other expenses related to his injuries. After receiving treatment from Dr. Garvar, Hasan sought medical treatment from Dr. Jennifer Schaumberg, an oral and maxillofacial surgeon. Dr. Garvar acknowledged that a physician patient relationship existed between Hasan and Dr. Schaumberg. While in the process of scheduling Dr. Schaumberg's deposition, Hasan learned that OMS National Insurance Company (OMSNIC) had retained an attorney to consult with Dr. Schaumberg and to conduct an ex parte private predeposition conference with her. Dr. Schaumberg was never a party in the case against Dr. Garvar. OMSNIC insured both Dr. Garvar and Dr. Schaumberg and had previously retained an attorney to represent Dr. Garvar in the case Hasan filed against him. Originally, separate and distinct law firms represented each doctor. However, at some point, the attorney representing Dr. Schaumberg joined the law firm representing Dr. Garvar. Although different attorneys represented Dr Schaumberg and Dr. Garvar, OMSNIC selected, retained, and paid for both attorneys. When Hasan became aware that OMSNIC had selected and paid for an attorney to meet with Dr. Schaumberg, he moved for a protective order to prohibit the ex parte predeposition conference. The trial court denied Hasan 's motion, and, after writing a full opinion approving the trial court's action, the Fourth District Court of Appeal denied Hasan's petition for a writ of certiorari. The Supreme Court of Florida Granted Hasan's petition for certiorari.

COURT'S OPINION: The Supreme Court of Florida held that the law creates a broad and expansive physician-patient privilege of confidentiality for the patient's personal information with only limited, defined exceptions. The privilege prohibits ex parte meetings between nonparty treating physicians and others outside the confidential relationship. This is so whether or not they intend to discuss privileged or non-privileged matters without measures to absolutely protect the patient and the privilege. Accordingly, the court quashed the written decision of the Fourth District, which had ruled against Hasan.

LEGAL COMMENTARY: The physician-patient privilege is, as it should be, virtually sacrosanct! Florida law provides, in pertinent part: "Except in a medical negligence action or administrative proceeding when a health care practitioner or other 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.- The court agreed with Hasan who contended that ex parte conferences are prohibited even if there is a verbal representation not to discuss privileged information--in other words, matters related to the patient. Dr. Garvar, in contrast, unsuccessfully attempted to convince the court that the law does not prohibit an ex parte meeting between a nonparty physician and counsel provided by the insurance company even though it is agreed that the nonparty treating physician will not be a defendant. The court rejected Dr. Garvar's contention that to prohibit an ex parte meeting between a nonparty treating physician and counsel would violate the physician's common law right to counsel and First Amendment right to freedom of speech. He was not successful in convincing the majority. However, a dissenting opinion was filed. One judge concurred with the opinion of the dissenting judge.

A. David Tammelleo JD Editor & Publisher
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Title Annotation:Hospital Law Case of the Month
Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Article Type:Case overview
Geographic Code:1U5FL
Date:Dec 1, 2012
Previous Article:State high court reversed $8 million punitive damage award.
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