The Florida Supreme Court on Thursday blocked an insurance-company attorney from speaking privately with a doctor who treated a plaintiff in a medical-malpractice case, ruling that state law "creates a broad and expansive physician-patient privilege of confidentiality."
The 5-2 opinion in a Broward County case overturned a lower-court decision and delved into a controversy about what are known as "ex parte communications" in malpractice lawsuits. That controversy has flared during the past two legislative sessions.
The legislative debate has involved whether defense attorneys should be able to speak privately with doctors who are not parties to the lawsuits but have treated the plaintiffs --- and are potential witnesses.
Thursday's ruling stemmed from a malpractice lawsuit that plaintiff Ramsey Hasan filed against dentist Lanny Garvar, alleging that inadequate care caused Hasan to get a bone infection and worsened dental problems. Hasan later sought treatment from oral surgeon Jennifer Schaumberg.
The sides began battling after an attorney hired by Garvar's insurer, OMS National Insurance Co., sought to hold a private conference with Schaumberg before she was deposed in the malpractice case. OMS National Insurance Co. also insured Schaumberg and retained attorneys for both doctors. The disputed meeting was supposed to be between Schaumberg and her attorney, not the attorney for Garvar.
But the majority opinion, written by Justice R. Fred Lewis, pointed to a state law aimed at protecting the confidentiality of information between patients and doctors. It said earlier court precedents have "consistently emphasized that the statute's primary purpose is to broadly protect" against disclosing such information.
"At issue here is whether the patient confidentiality statute prohibits a nonparty-treating physician from having an ex parte meeting with an attorney selected and provided by the defendant's insurance company,''' wrote Lewis, who was joined in the majority by Justices Jorge Labarga, Barbara Pariente, James E.C. Perry and Peggy Quince. "We hold that the physician-patient confidentiality statute prohibits such meetings."
But Chief Justice Ricky Polston and Justice Charles Canady dissented, saying a decision by the 4th District Court of Appeal should be upheld and describing the majority opinion as "seriously in error."
Polston wrote that an order had been issued in the case barring Schaumberg from discussing confidential patient information during the private meeting with her attorney. Joined by Canady, Polston's dissent said the majority opinion is so broad it would prevent Schaumberg from receiving legal representation.
"The practicing physicians and the lawyers of Florida deserve more respect as professionals who are faithful to their oaths of ethical conduct,'' the dissent said. "We should expect and demand compliance with court orders rather than rule with the anticipation that they will be violated."
The issue of ex parte communications between defense attorneys and physicians has drawn debate during the past two legislative sessions, as lawmakers have considered changes to the medical-malpractice system.
Supporters have argued, at least in part, that allowing such discussions would make medical-malpractice cases fairer. That is because the plaintiffs' attorneys have access to information from treating physicians, while defense attorneys do not.
But opponents of allowing ex parte communications have said defense attorneys should not be able to interview physicians without the patients' attorneys also being present.
