West v. BranhamWest v. Branham
The issue on this petition for writ of certiorari is the extent to which
The defense counsel, in this personal injury action, sought a protective order upon learning that the plaintiffs’ attorney was arranging ex parte pre-deposition conferences with the physicians who had examined the injured plaintiff at the request of the defense pursuant to the rule. However, the trial court entered an order recognizing that plaintiffs’ counsel was entitled to arrange such ex parte communications with the IMEs and prohibiting defense counsel from any communication with the examining physicians other than by deposition.
The trial court construed
(1) Any health care practitioner licensed pursuant to [various chapters pertaining to licensure of medical professionals] who makes a physical or mental examination of, or administers treatment to, any person shall, upon request of such person or his legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, including X rays and insurance information... .
(2) Except as otherwise provided in s. 440.13(2)(c) such records shall not be furnished to, and the medical condition of a patient may not be discussed with any person other than the patient or his legal representative or other health care providers involved in the care and treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization to any person, firm, or corporation which has procured or furnished such examination or treatment with the patients‘s consent or when compulsory physical examination is made pursuant to
rule 1.360, Florida Rules of Civil Procedure , in which case copies of the medical records shall be furnished to both the defendant and the plaintiff. Such records may be furnished in any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or his legal representative by the party seeking such records. Except in a medical negligence action when a health care provider reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of care and treatment of such patient is confidential and may be disclosed only to other health care provides 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... . (emphasis supplied)
In general, it is the practice of defense counsel in this state to treat the independent examining physician as a defense witness in preparation for trial. However, a broad interpretation of the statute turns this practice on end.
Patently, the purpose of the statute is to preserve a patient‘s right to confidentiality with respect to information disclosed to a health care provider in the course of the care and treatment of a patient and to limit the conditions under which such information may be disclosed to others. 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 physicians. The trial court relied on Franklin v. Nationwide Mutual Fire Ins. Co., 566 So.2d 529 (Fla. 1st DCA), rev. dismissed, 574 So.2d 142 (Fla. 1990) in its order. However, we consider that case to be inapposite, as it involved only communication
We are satisfied upon our review of the statute that its terms do not mandate that a physician, after performing an examination pursuant to
We note, as argued by petitioners, that the statute specifically uses the word “patient” in reference to the examined party. Neither the statute nor any Florida decisions define the word “patient.” Generally a party who is examined by an independent medical examiner employed by the adverse party for the sole purpose of determining whether physical factors are present that may confirm or rebut those that are asserted by the examined party would not be considered a “patient” of the examining physician. Nor can we discern any reason why an examined party would anticipate that such an examination would be confidential vis-a-vis the attorney requesting the examination.
Our record on this petition includes a portion of the senate staff comments. From this limited record it would appear that the wording of the statute, insofar as our issues are concerned, was intended to prevent the practice of defense counsel discussing a patient‘s condition with the patient‘s treating physician. We see nothing in the analysis furnished to us indicating an intent to restrict communication between the defense and its retained medical expert. Certainly, if the legislature had intended that trial courts would enter orders granting plaintiff‘s protection from communication between the defense and a witness it is calling as an expert, it could have said so in a much more clear and explicit manner.
We conclude that the legislature did not intend by
It is clearly the purpose of an independent medical examination to offer the requesting party, upon a showing of good cause, the benefit of another evaluation of the examined party‘s condition and of any issues of causation in anticipation that such evaluation may be balanced against the examined party‘s unlimited access to treating physicians and other experts. By interpreting this statute in the broad manner advocated by respondents, the adverse counsel will not even be able to calculate whether to call the IME as an expert witness as to any of the issues relating to the examined party‘s condition without first taking an exhaustive and open-ended deposition in order to determine what answers to anticipate from their own expert. Because of our interpretation of the statute, we need not address the additional issue raised by petitioners that the statute, as
Therefore, the petition is granted, the order of the trial court denying the motion for protective order is quashed, and we certify the following question to the supreme court as one of great public importance:
DOES
SECTION 455.241, FLORIDA STATUTES , ENTITLE AN EXAMINED PARTY UNFETTERED EX PARTE ACCESS TO AN INDEPENDENT MEDICAL EXAMINER WHO HAS EXAMINED THE PARTY PURSUANT TORULE 1.360 ? DOES THE STATUTE PRECLUDE THE ADVERSE PARTY REQUESTING THE EXAMINATION FROM CONFERENCE WITH THE EXAMINING PHYSICIAN OTHER THAN BY FORMAL DEPOSITION OR TRIAL? IF SO, IS THE STATUTE UNCONSTITUTIONAL AS IMPINGING UPON THE RULEMAKING AUTHORITY OF THE SUPREME COURT OR AS DEPRIVING THE ADVERSE PARTY OF DUE PROCESS?
LETTS and DELL, JJ., concur.