WENDY LEJEUNE, JON MARK LEJEUNE, SALVADOR RAMIREZ, M.D., AND U.S. SECURITY INSURANCE COMPANY, PETITIONERS,
v.
CYNTHIA AIKIN AND NEIL SCHAICH, RESPONDENTS

Fla. 3d DCA | 1993-09-21
No. 93-1362
Before SCHWARTZ, C.J., and HUBBART and JORGENSON, JJ.
624 So. 2d 788 Florida District Court of Appeal, Third District (1993) Positive Treatment
Cited by 14 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Petitioners sought certiorari review of trial court discovery orders compelling an independent medical examiner (IME) to create prospective records of his professional fees and allowing plaintiffs' counsel to audit his patient files, and requiring an insurance company to produce detailed payment records it did not maintain. The appellate court granted the petition, finding the orders violated patient confidentiality, were unduly burdensome, and sought discovery of nonexistent records.


Holding

The court held that trial courts lack authority to compel creation of prospective records not previously maintained or to order discovery of nonexistent records. Additionally, permitting plaintiffs' counsel to audit an IME physician's patient files without patient notice or consent violates statutory patient confidentiality protections under Florida Statute § 455.241(2).


Headnotes

[1] A court cannot order a physician to create records of fee sources and amounts for professional services that the physician did not previously keep.

[2] Discovery orders compelling an audit of an independent medical examiner's patient files without patient consent violate statutory confidentiality protections.

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Key Quotes

“there is no authority requiring an IME physician to create in futuro records in his office, as here, which he/she did not keep prior to the order”

Establishes that courts cannot compel creation of prospective records not previously maintained.

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Facts & Procedural History

In a negligence action arising from an automobile accident, plaintiffs sought discovery from Dr. Salvador Ramirez, an orthopedic surgeon hired as an I…

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Opinion of the Court
PER CURIAM.

[*789] PER CURIAM.

This is a petition for a writ of certiorari filed by (a) the defendant Wendy and Jon LeJeune in a negligence action arising out of an automobile accident, (b) an orthopedic surgeon Dr. Salvador Ramirez, hired by the defendants in this action to examine the plaintiff, Cynthia Aikin, and (c) U.S. Security Insurance Company, the defendants’ automobile insurance carrier below. The petition seeks review of two orders compelling the discovery of certain records from Dr. Ramirez and U.S. Security Insurance Company. The petitioners claim that compliance with these orders is unduly burdensome and that such orders invade the privacy rights of Dr. Ramirez’ patients. We entirely agree and, accordingly, grant the subject petition and quash the orders under review.

One of the orders before us compels Dr. Ramirez (1) to create “detailed records” in his office from the day following the court’s order to the date of trial “determining the source of Dr. Ramirez’ Professional Association’s fees for professional services and the amounts of same for acting as an IME and/or expert witness,” which records “shall be provided [to plaintiffs counsel] every 30 days until trial”; and (2) to “[a]llow plaintiffs counsel with a court designated party ... to review the last 3 years of Dr. Ramirez’ records by randomly selecting up to 500 files per year to determine if any [IME] report remains in said file and if so whether said report was addressed to attorneys and/or insurance carriers.” Although there is case authority authorizing the discovery of the income sources of IME physicians in personal injury cases under certain limited circumstances,1 there is no authority requiring an IME physician to create in futuro records in his office, as here, which he/she did not keep prior to the order. Nor is there any authority for a plaintiffs counsel to conduct an audit of an IME physician’s patient files without any notice to or consent of the patients involved, as here, because such an audit clearly violates the statutory confidentiality of said files. Section 455.241(2), Fla.Stat. (Supp.1992).

The other order under review compels U.S. Security Insurance Co. “to provide within 10 days ... any supporting documents showing the amounts of monies it has paid IME and specifically the amount it has paid IME Dr. Salvador Ramirez for the past 3 years....” As established by the testimony of U.S. Security’s representative below, a record is kept by U.S. Security as to the total amounts of monies paid in professional fees, but no records are kept as to whom such money is paid and for what year. Clearly, a trial court has no authority to order the discovery of nonexistent records. See Bissell Bros. v. Fares, 611 So. 2d 620 (Fla. 2d DCA 1993); Balzebre v. Anderson, 294 So. 2d 701 (Fla. 3d DCA 1974).

The petition for a writ of certiorari is granted, the orders under review are quashed, and the cause is remanded to the trial court for further proceedings.

It is so ordered.

HUBBART and JORGENSON, JJ., concur. . Abdel-Fattah v. Taub, 617 So. 2d429 (Fla. 4th DCA 1993); Crandall v. Michaud, 603 So. 2d 637 (Fla. 4th DCA 1992); Wood v. Tallahassee Memorial Regional Medical Ctr., Inc., 593 So. 2d 1140 (Fla. 1st DCA), rev. denied, 599 So. 2d 1281 (Fla. 1992); Dollar General, Inc. v. Deangelis, 590 So. 2d 555 (Fla. 3d DCA 1991); McAdoo v. Ogden, 573 So. 2d 1084 (Fla. 4th DCA 1991); State Farm Mut. Auto. Ins. Co. v. Gray, 546 So. 2d 36 (Fla. 3d DCA 1989).

Concurrence
SCHWARTZ, Chief Judge

SCHWARTZ, Chief Judge

(specially concurring).

I entirely agree with the decision to quash the orders below. I wish to indicate, however, my concern that the decisions in this field, including Dollar General, Inc., v. Deangelis, 590 So. 2d 555 (Fla. 3d DCA 1991) and Trend South, Inc. v. Antomarchy, 623 So. 2d 815 (Fla. 3d DCA 1993), have gone much too far in permitting inquiry into the private financial affairs of the physicians in question. See Trend South, 623 So. 2d at 816 (Jorgenson, J., dissenting).

In my view, the intrusiveness of this type of discovery greatly outweighs its alleged value. The information serves only to emphasize in wholly unnecessary detail what everyone knows to be the ease and what would be apparent to the jury on the simplest cross-examination: that certain doctors are consistently chosen by a particular side in personal injury cases to testify on its respective behalf. See generally Breedlove v. State, 580 So. 2d 605, 609 (Fla.1991) (“Evidence of bias may be inadmissible if it unfairly prejudices the trier of fact against the witness or misleads the trier of fact.

Therefore, inquiry into collateral matters, if such matters will not promote the ends of justice, should not be permitted if it is unjust to the witness and uncalled for by the circumstances.”). I tend to believe therefore that our courts have misbalaneed “the competing interests that would be served by granting discovery or by denying it,” Rasmussen v. South Florida Blood Service, Inc., 500 So. 2d 533, 535 (Fla.1987), with the possible result that the discovery process is being used improperly as a tool to force particular doctors from becoming involved in the judicial process at all or to extract settlements in individual cases. If appropriately presented with the issue in the future, I would reexamine the correctness of these decisions.


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Citator

Cited By

  • Syken v. Elkins, 644 So. 2d 539 (Fla. 3d DCA 1994)
    …and have limited probative value. We are aware that our analysis conflicts with certain pronouncements of this court and that of other districts on this issue.2 [*545] Nonetheless, we adopt the reasoning of Chief Judge Schwartz in LeJeune v. Aikin, 624 So. 2d 788, 789 (Schwartz, C.J., specially concurring) (Fla. 3d DCA 1993) and Judge Jorgenson in Trend South, Inc. v. Antomarchy, 623 So. 2d 815, 186 (Fla. 3d DCA) (Jorgenson, J., dissenting), review denied, 630 So. 2d 1103 (Fla.1993), and conclude that decisi…
  • Sardinas v. Claridania Lagares, 805 So. 2d 1024 (Fla. 3d DCA 2001)
    …equally clear that if the defendant had petitioned for a writ of certiorari when the trial court first ordered the creation of these burdensome, irrelevant, and non-existent lists, we would have readily granted it. See id. (citing LeJeune v. Aikin, 624 So. 2d 788 (Fla. 3d DCA 1993); Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla.1999); and Syken v. Elkins, 644 So. 2d 539 (Fla. 3d DCA 1994)). See also Mount Sinai Med. Ctr. of Fla., Inc. v. Lakhani, 775 So. 2d 1011 (Fla. 3d DCA 2001) (granting certiorari an…
  • …rty’s business where the potential for irreparable harm is demonstrated. See generally Blank v. Mukamal, 566 So. 2d 54 (Fla. 4th DCA 1990); First City Devs. v. Hallmark of Hollywood Condo. Ass’n, 545 So. 2d 502 (Fla. 4th DCA 1989); LeJeune v. Aikin, 624 So. 2d 788, 789 (Fla. 3d DCA 1993). The harm here is irreparable because once confidential information is disclosed, it cannot be “taken back,” and once the wholesale invasion into the defendant’s computer system has occurred, the damage to the system may be i…

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