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Bradley v. Brotman2/19/2003
when it failed to redact Dr. Unis' medical records to remove the telephone note.
As to the contact with Dr. Bernhardt, this too violated section 455.667(5), prohibiting contact with a patient's physician without consent, which appellee candidly admits. This violation may have been more egregious than the violation with Dr. Unis' records because the initial contact was intentional, and Cocalis sought to use his family connection with Dr. Bernhardt to obtain information he was statutorily not entitled to. However, it was not as prejudicial because Dr. Bernhardt had not been listed as a causation witness and because the doctor revealed nothing to Cocalis when he called. Thus, under these circumstances we cannot say that the trial court abused its discretion in failing to strike Brotman's pleadings. However, the trial court may reconsider the motion for sanctions at a new trial if Krupnick calls Bernhardt to testify. Krupnick expressed concern that Bernhardt, Kelly Bradley's long-time treating dermatologist, would now be prejudiced against Kelly after this entire incident. Whether that prejudice exists and whether it would require the striking of pleadings, the removal of Mr. Cocalis from the case, or other monetary sanctions, are issues we leave for further consideration after remand. See Moakley v. Smallwood, 826 So. 2d 221, 227 (Fla. 2002).
In sum, we reverse and order a new trial on the basis of the admission of Dr. Unis' medical records, but we condemn the actions of defense counsel as to both the contact with Dr. Bernhardt and the strategic concealment of Dr. Unis' records.
SHAHOOD and HAZOURI, JJ., concur.
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