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Estate of Stephens v. Galen Health Care9/30/2005
The Estate of Delia F. Stephens (the Estate), the plaintiff in a medical negligence case, petitions this court for a writ of certiorari quashing an order allowing ex parte communications between the attorneys of the defendant hospital--operated by Galen Health Care, Inc., Galencare, Inc., and HCA-The Healthcare Company (the Respondents)--and the physicians and other health care providers responsible for Ms. Stephens' treatment. We grant the petition and quash the order because it is too broad in permitting ex parte discovery of medical information "with any treating physicians or health care providers who provided care and treatment to Delia Stephens at Brandon Hospital" during a specified time period. (Emphasis added.)
Ms. Stephens died while she was a patient at Brandon Hospital, which is operated by the Respondents--corporate entities that, according to the Estate, control policymaking, training, staffing, quality of care, and budgeting of Brandon Hospital. The Estate brought a negligence survival claim (count I) and a wrongful death action (count II) against the Respondents, alleging that failures in the overall management of Brandon Hospital--including failure to supervise and train its nursing staff and failure to provide proper custodial care, wound care, nutrition, hydration, and weight monitoring--caused Ms. Stephens' death. The Estate did not sue any of the treating physicians for medical negligence. The Respondents filed a "Motion For Order Authorizing Ex Parte Communications With Former Treating Physicians and Health Care Providers." The trial court, citing Royal v. Harnage, 826 So. 2d 332 (Fla. 2d DCA 2002), granted the motion to allow the Respondents' attorneys to communicate ex parte with any physicians and other health care providers responsible for treating Ms. Stephens during the time alleged in the complaint. The Estate petitioned this court for a writ of certiorari quashing the trial court's order, arguing that the order violates Ms. Stephens' privilege as a patient to confidential communications with her health care providers. As discussed below, we agree because the trial court's order did not limit communication to agents and employees or former employees of the Respondents.
As a preliminary matter, we note that review by certiorari is appropriate in cases that allow discovery of privileged information. Lemieux v. Tandem Health Care of Fla., Inc., 862 So. 2d 745 (Fla. 2d DCA 2003). This is because once privileged information is disclosed, there is no remedy for the destruction of the privilege available on direct appeal. Martin-Johnson, Inc., v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987). The Estate argues that the trial court's order compels discovery of statutorily privileged medical information. Therefore, we properly have certiorari jurisdiction to review the order.
The next question is whether the order departs from the essential requirements of law. See generally id. To answer this question, we must examine the scope of the privilege of confidentiality between patients and their health care providers. The Florida Legislature has defined this privilege as follows:
Except as otherwise provided in this section and in s. 440.13(4)(c) [dealing with worker 's compensation ], [a patient's medical] records may 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.
ยง 456.057(5)(a), Fla. Stat. (2003). Patient information is expressly privileged from disclosure unless a statutory exception
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