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Figaro v. Bacon-Green6/16/1999
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF
Opinion filed June 16, 1999.
On petition for writ of certiorari to the Circuit Court for Dade County, Bernard S. Shapiro, Judge.
Deborah Figaro, plaintiff, petitions for a writ of certiorari to reverse the lower court's order denying her Second Motion to Prohibit Ex Parte Contact with Plaintiff's Physicians and to Require Disclosure of Ex Parte Contact. We grant the petition.
Plaintiff filed a medical malpractice action against Yolanda Bacon-Green, M.D. and other associated physicians and entities (collectively referred to here as defendants), all of whom are represented by the same law firm.
On May 27, 1997 and June 4, 1997, defendants issued "mail-in" subpoenas duces tecum pursuant to Florida Rule of Civil Procedure 1.351 to one of plaintiff's treating physicians, Dr. Rigoberto Rodriguez, seeking plaintiff's medical records. On May 29, 1997 and June 9, 1997, plaintiff served Requests for Copies of all records produced by Dr. Rodriguez upon defendants.
On November 19, 1998, defendants took the deposition of Dr. Rodriguez. During that deposition, defendants' counsel revealed that he had telephoned Dr. Rodriguez's office ex parte prior to the deposition to request that he be faxed all of plaintiff's medical records compiled after Dr. Rodriguez's compliance with the 1997 "mail-in" subpoenas. No new subpoena was issued, but rather the updated records request was made pursuant to the 1997 mail-in subpoenas. Defendants did not give plaintiff notice of their telephonic updated records request to Dr. Rodriguez.
On November 20, 1998, plaintiff filed a Motion to Prohibit Ex Parte Contact with Plaintiff's Physicians and to Require Disclosure of Ex Parte Contact, seeking an order from the trial court prohibiting such ex parte update records request activities, disclosure of other healthcare providers to whom such ex parte conduct had been directed and production of all update records obtained ex parte. Defendants filed a response. At the December 22, 1998 hearing on the motion, defendants' counsel indicated that due to a problem with the facsimile transmission, no updated records had been received. The trial court denied plaintiff's motion, stating that because no records had been produced, there was no violation.
On January 7, 1999, defendants' counsel sought updated records by a letter request from Dr. Kenneth Fischer, another of plaintiff's treating physicians. A mail-in subpoena had been issued to him on May 27, 1997, and plaintiff had served a request for copies on May 29, 1997. Defendants' counsel carbon copied plaintiff on the updated records request letter that had been sent to Dr. Fischer. On January 11, 1999, plaintiff wrote to Dr. Fischer, requesting that he not provide updated records pursuant to this practice. However, before Dr. Fischer received this letter, defense counsel had already picked up the records in person. Plaintiff then filed her Second Motion to Prohibit Ex Parte Contact with Plaintiff's Physicians and to Require Disclosure of Ex Parte Contact. Defendants responded, and on February 25, 1999, the trial court denied the motion. Plaintiff then filed this petition for certiorari.
We grant the petition for writ of certiorari because we agree with plaintiff that the lower court departed from the essential requirements of law in denying plaintiff's Second Motion to Prohibit Ex Parte Contact with Plaintiff's Physician and to Require Notice of Ex Parte Contact, contrary to the provisions of section 455.667(5), Florida Statutes (Supp. 1998), which mandates that a patient's medical records are confidential an
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