JOHN R. LEIKENSOHN, M.D. AND HOWARD A. SEIDER, JR., M.D., PETITIONERS,
v.
ANGELINA CORNWELL AND CHRISTOPHER C. CORNWELL, HER HUSBAND, RESPONDENTS
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Doctors Leikensohn and Seider petitioned for certiorari to review a discovery order compelling them to disclose identifying information about prior surgical patients. The court reversed the trial court's order, holding that discovery of third-party patient medical information violates patient confidentiality and privacy rights and is not necessary to establish the standard of care in medical malpractice cases.
No. The court held that discovery of identifying information regarding third-party patients violates patient confidentiality and privacy rights, and such information is not necessary to establish the applicable standard of care in medical malpractice cases, which can be proven through other methods.
[1] Discovery orders compelling disclosure of third-party medical information are reviewable by certiorari.
[2] In medical malpractice actions, discovery requests that seek to inject the medical information of strangers into the public record are generally impermissible.
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Join FLexlaw to unlock all legal intelligence“[T]o permit a party to inject into the public record medical information of a stranger to the suit, under the guise that it has a bearing on the competency of the doctor, would be unconscionable.”
Establishes the foundational principle that third-party patient medical information cannot be used in discovery to prove physician competency
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Join FLexlaw to unlock all legal intelligenceThe Cornwells sued Leikensohn and Seider for medical malpractice arising from reconstructive vaginal surgery performed on Mrs. Cornwell, alleging the …
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HOBSON, Acting Chief Judge.
John Leikensohn and Howard Seider, Jr., defendants below, petition this court for a writ of certiorari to review an order of the trial court compelling discovery regarding interrogatories numbered 80 and 85 propounded by Angelina and Christopher Corn-well, plaintiffs below. We grant the petition, reverse and remand.
The Cornwells sued medical doctors Leik-ensohn and Seider alleging medical malpractice. They claimed that the doctors negligently performed reconstructive vaginal surgery on Mrs. Cornwell; that the surgeons lacked the experience necessary to properly perform this type of operation; that the surgery itself was unusual in that it had never been performed on anyone to correct a condition similar to hers; that during the surgery, or immediately thereafter, Mrs. Cornwell suffered an ulnar nerve palsy; that the physicians performed further surgery on the affected area; and that the surgeons incompetently performed this second operation.
The Cornwells thereafter propounded numerous interrogatories upon the doctors. The questions numbered 79, 80, 84 and 85, together with each answer, read as follows:
Interrogatory No. 79: Prior to the operation performed on the plaintiff, how many Gracilis flap muscle operations had you personally performed (in which you were the operating surgeon)?
Answer, Seider: Several.
Answer, Leikensohn: Ten.
Interrogatory No. 80: If any were answered in ;the preceding interrogatory, after careful attention to patient confidentiality, for each such patient upon whom a Gracilis muscle flap operation was performed by you, please indicate her initials, the date of the surgery, and the hospital in which it was performed. Answer, Seider: Objected to on basis of unreasonable harassment; violative of the confidences of third parties; not calculated to develop admissible information; not material to issues.
Answer, Leikensohn: Objected to on basis of unreasonable harassment; violative of the confidences of third parties; not calculated to develop admissible information; not material to issues.
Interrogatory No. 84: Prior to the operation of the Plaintiff, how many ulnar nerve translocation procedures had you personally performed?
Answer, Seider: Several, exact number unknown.
Answer, Leikensohn: Exact number unknown — several.
Interrogatory No. 85: If any were answered in the preceding interrogatory, after careful attention to patient confidentiality, for each such patient upon whom an ulnar nerve translocation procedure was performed by you, please indicate his or her initials, the date of the surgery, and the hospital in which it was performed.
Answer, Seider: Objected to (See No. 80).
Answer, Leikensohn: Objected to (See No. 80).
On March 11, 1982, the trial court overruled the surgeons’ objections and ordered them to answer the interrogatories numbered 80 and 85, but limited the use of the information to a verification of the number of surgeries performed as answered in the interrogatories numbered 79 and 84.
In Argonaut Insurance Co. v. Peralta, 358 So. 2d 232, 233 (Fla. 3d DCA), cert. denied, 364 So. 2d 889 (Fla.1978), our sister court held as follows:
[T]o permit a party to inject into the public record medical information of a stranger to the suit, under the guise that it has a bearing on the competency of the doctor, would be unconscionable.
Likewise, in Teperson v. Donato, 371 So. 2d 703, 704 (Fla. 3d DCA 1979), the same court, citing language in Argonaut, stated as follows:
The question in medical malpractice is whether or not the doctor, in treating the plaintiff, used a standard of care commensurate with that used in the community and that question can be answered by utilizing other methods of proof than the invasion into medical records of strangers.
See also Fidelity & Casualty Co. v. Lopez, 375 So. 2d 59 (Fla. 4th DCA 1979); American Health Plan, Inc. v. Kostner, 367 So. 2d 276 (Fla. 3d DCA 1979).
Accordingly, we grant the petition for writ of certiorari, quash the trial court’s order denying petitioners’ motion for protective order as to the interrogatories numbered 80 and 85, and remand for further proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
BOARDMAN and DANAHY, JJ., concur.
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Bernadette Amente v. Willie B. Newman, M.D., 653 So. 2d 1030 (Fla. 1995)…the patients’ identities. While the Fourth District Court of Appeal has allowed discovery of a non-party’s medical records, the Second and Third District Courts of Appeal have held that such records are not discoverable. See Leikensohn v. Cornwell, 434 So. 2d 1030 (Fla. 2d DCA 1983) (medical malpractice defendant could not be compelled to answer interrogatory requesting non-party patient’s initials, date of surgery, and name of hospital where surgery was performed); North Miami Gen. Hosp. v. Royal Palm Beach…
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Willie B. Newman, M.D. v. Bernadette Amente and Solomon Amente, 634 So. 2d 305 (Fla. 5th DCA 1994)…is inappropriate. North Miami Gen. Hosp., 397 So. 2d 1033; Teperson v. Donato, 371 So. 2d 703 (Fla. 3d DCA 1979); Peralta, 358 So. 2d 232. The Second District Court of Appeal has followed the position of the Third District. Leiken-sohn v. Cornwell, 434 So. 2d 1030 (Fla. 2d DCA 1983). The Fourth District Court of Appeal has a contrary view. In two recent cases, the Fourth District, without certifying conflict with the decisions of the Third and the Second Districts, has allowed patients’ records to be produced…
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In re David Stuart Fink, M.D., 876 F.2d 84 (11th Cir. 1989)…2d 1473, 1478 (11th Cir.1983). In this diversity medical malpractice suit, we look to Florida law. The Florida courts have consistently refused to permit discovery of the medical records of nonparties to an action. See, e.g., Leikensohn v. Cornwell, 434 So. 2d 1030 (Fla. 2d DCA 1983); Fidelity & Cas. Co. of N.Y. v. Lopez, 375 So. 2d 59 (Fla. 4th DCA 1979); Argonaut Ins. Co. v. Peralta, 358 So. 2d 232 (Fla. 3d DCA 1978), cert. denied, 364 So. 2d 889 (Fla.1978). The production of this type of information is disf…
Authorities Cited
- Argonaut Ins. Co. v. Peralta, 358 So. 2d 232 (Fla. 3d DCA 1978)
- Fid. & Cas. Co. OF NEW York v. Lopez, 375 So. 2d 59 (Fla. 4th DCA 1979)
- Am. Health Plan, Inc. v. Tully Kostner, 367 So. 2d 276 (Fla. 3d DCA 1979)
- David S. Teperson, M. D., Drs. Jose & Teperson, P. A. v. Donato, 371 So. 2d 703 (Fla. 3d DCA 1979)