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State2/22/2005
Emmett Willams, et al., ("Relator") filed a petition for writ of prohibition seeking to prevent the Honorable William Lohmar (" Respondent") from allowing discovery of nonparty medical records in a wrongful death action. Our preliminary order of prohibition is made absolute.
The underlying action is for the wrongful death of Relator's wife (" Decedent") alleging medical malpractice against J. Stephen Scott, M.D. and Roger de la Torre, M.D. ("Defendants") during laparoscopic bariatric surgery in April 2000. James M. Balliro, M.D. ("Dr. Balliro") was named as Relator's retained medical expert. Defendants deposed Dr. Balliro on July 28, 2004. During his deposition, Dr. Balliro testified Defendants violated the standard of care during Decedent's bariatic surgery by failing to oversew the gastric bypass anastomosis. The anastomosis is surgically stapled and the issue is whether the staple line should be oversewn with a suture by the surgeon to prevent leakage. Dr. Balliro testified as follows:
When you oversew the anastomosis, what do you write in your operative report?
A: Oh, it's the same thing every time. The anastomosis is oversewn circumferentially with interrupted 3-0 GI silk Lembert suture. That's capital L-E-M-B-E-R-T.
Q: And is that what you write or dictate in every operative note for bariatric surgery?
A: Yeah. Every single one of 2400 plus.
After Dr. Balliro's deposition, Defendant Dr. de la Torre filed a motion seeking the appointment of a commissioner for the purpose of administering oaths and presiding over the taking of an out-of-state deposition. Respondent granted this motion, and a commissioner was appointed. Dr. de la Torre subsequently sought the issuance of a subpoena duces tecum to take the deposition of the custodian of records for Capital Regional Medical Center ("CRMC") in Leon County, Florida. The subpoena duces tecum was issued, requesting:
All operative reports prepared by [Dr. Balliro] relative to laparoscopic/bariatric surgical procedures performed by Dr. Balliro between April 26, 1998 and April 26, 2000. All patient identifying information may be redacted from the reports.
Relator filed a motion to quash the subpoena and for a protective order. The custodian of records for CRMC filed an affidavit indicating Dr. de la Torre's subpoena sought over three hundred documents which were in off-site storage. The custodian of records stated not only would personnel have to travel to the off-site facility to review the documents to determine whether they were responsive to the request, but also retrieval of the documents would cost from $1.00 to $14.00 per document. Further, the custodian of records expressed concerns about serious logistical and financial burdens placed upon CRMC to comb through the documents, to ensure there were no Health Insurance Portability and Accountability Act ("HIPPA") violations by producing the documents, redact all identifying information, and provide notice to the patients that their medical records were being examined.
Dr. de la Torre filed suggestions in opposition, after which a hearing was held on Relator's motion to quash. Respondent denied Relator's motion to quash, stating, "the information sought by Defendant de la Torre (Dr. Balliro's laparoscopic/bariatric operative reports between April 26, 1998 and April 26, 2000, with all patient identifying information redacted) is neither privileged nor burdensome, but rather is relevant and discoverable." Relator then sought a writ of prohibition with this Court.
Writs of prohibition are not issued as a matter of right; rather, whether a writ should issue in a particular case
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