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Bradley v. Brotman2/19/2003
ephone note. The court refused to redact the record.
During Cocalis' closing arguments, he showed the jury a poster-board- size version of Dr. Unis' medical note on the telephone conversation with Krupnick. Cocalis highlighted that Dr. Unis was Kelly's only physician that Krupnick did not call to present his opinion because Dr. Unis did not think Kelly's condition was related to the stress from the dog bite.
The jury awarded Bradley her past medical expenses but did not award any future damages. Krupnick filed a post-verdict motion to strike Brotman's pleadings and a motion for new trial based upon the ex parte contact with the doctors. The court denied the motion and Bradley filed this appeal.
We will address the issues in reverse order as we conclude that the failure to exclude the telephone note on the medical records of Dr. Unis is reversible error. As to the contact with Dr. Bernhardt, while it was unlawful and unprofessional, the denial of sanctions on this issue was not an abuse of discretion.
Section 455.667(5) (renumbered as section 456.057(5)), provides that a patient's medical records,
ay not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient's legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient.
The statute allows for medical records to be furnished without the patient's written authorization under certain circumstances, including upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records. In Acosta v. Richter, 671 So. 2d 149, 154-55 (Fla. 1996), the supreme court noted that this section created a "broad and express privilege of confidentiality as to the medical records and the medical condition of a patient" and "an explicit scheme . . . to strictly control the dissemination of a Florida patient's medical information." Under this statute, the production of Kelly's medical records could be compelled only through a subpoena with proper notice to the Bradleys or Krupnick, as Kelly's legal representative. Admittedly, Cocalis did not notify Krupnick of the subpoena and violated the statute. Professional conduct would have also required him to provide copies of the amended medical records to Krupnick once he received them. What makes the statutory violation more egregious is that Cocalis failed to reveal the subpoena and the receipt of Dr. Unis' medical records when Krupnick asked Cocalis in court whether he had any other contact with Kelly Bradley's physicians.
Because Krupnick discovered Dr. Unis' telephone note that opined the dog bite did not cause the alopecia before that evidence was revealed to the jurors, it could have been excised without any prejudice to either side. The court's refusal to redact the note from the record was an abuse of its discretion.
While Brotman argues that Krupnick is bound by his stipulation to the admission of the medical records, it is apparent to us from the record that Krupnick was stipulating only to those medical records that Dr. Unis identified at his deposition. Krupnick did not know, and had no reason to know, that the doctor had added a note to the medical records after his telephone call.
In McGoey v. State, 736 So. 2d 31, 33-34 n.2 (Fla. 3d DCA 1999), the state and defense agreed not to admit McGoey's pretrial statements into evidence. At trial, the state sought to introduce other statements made by McGoey. When the defense objected, th
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