RUSSELL BRYAN KIRKLAND, RAYFORD E. KIRKLAND, AND FRANKIE W. KIRKLAND, PETITIONERS,
v.
WILLIAM H. MIDDLETON, M.D., ET AL., RESPONDENTS

Fla. 5th DCA | 1994-06-03
No. 94-548
DIAMANTIS and THOMPSON, J.J., concur.
639 So. 2d 1002 Florida District Court of Appeal, Fifth District (1994) Caution
Cited by 20 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.


Holding

The court held that Florida Statute § 455.241(2) prohibits ex parte interviews with a malpractice plaintiff's current health care providers and that the protection against disclosure of privileged information does not require a showing of irreparable harm beyond the threat of disclosure itself.


Headnotes

[1] Section 455.241(2), Florida Statutes, waives patient confidentiality for medical information only when a health care provider is or reasonably expects to be named as a de…

[2] The protection against disclosure of privileged medical information does not require a showing of irreparable harm beyond the threat of disclosure itself to merit action…

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Petitioners sought a writ of certiorari to quash a trial court order authorizing defendants in a medical malpractice case to conduct ex parte intervie…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
W. SHARP, Judge.

W. SHARP, Judge.

Petitioners in a medical malpractice case seek issuance of a writ of certiorari from this court to quash the trial court’s order which authorizes respondents (defendants below) and their counsel to conduct ex parte interviews with Russell Kirkland’s current physicians and health care providers. The trial court held that section 455.241(2), Florida Statutes (199ip does not prohibit ex parte interviews with the malpractice' plaintiffs’ current health care providers, and if it did so, it would be unconstitutional. We disagree and issue the writ.

Section 455.241(2) provides in pertinent part:

Except as otherwise provided in s. 440.-13(2), such 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 providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization to any person, firm, or corporation which has procured or furnished such examination or treatment with the patient’s consent or when compulsory physical examination is made pursuant to Rule 1.360 Florida Rules of Civil Procedure, in which case copies of the medical records shall be furnished to both the defendant and the plaintiff. Such records may be furnished in any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records. Except in a medical negligence action when a health care provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given....

We agree with our sister court in Franklin v. Nationwide Mutual Fire Insurance Co., 566 So. 2d 529 (Fla. 1st DCA), rev. dismissed, 574 So. 2d 142 (Fla.1990), that this statute1 waives confidentiality for the medical condition of a patient or information furnished by the patient to a health care provider only in the following situations:

1) when a health care provider is or reasonably expects to be named as a defendant in a medical malpractice action (for that health care providers’ records and information) or

2) when the patient gives written authorization or

3) when compelled by subpoena at a deposition, evidentiary hearing or trial for which proper notice was given.

Another waiver situation not specifically mentioned by Franklin is for communication by and between current health care providers. This situation is not applicable here, nor was it in Franklin.

The statute, although extremely convoluted and tortured in language (perhaps by the amending process), does not permit this ex parte interview procedure. See also, West v. Branham, 576 So. 2d 381, 383 (Fla. 4th DCA), rev. dismissed, 583 So. 2d 1034 (Fla.1991). Nor -do we think petitioners should fail to obtain relief in this court because Franklin fails to specifically address the element of irreparable harm. See, e.g., Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla.1987). The protection against disclosure of privileged information does not require a showing of irreparable harm beyond threat of disclosure itself to merit action by reviewing courts. See Manor Care of Dunedin, Inc. v. Reiser, 611 So. 2d 1305, 1306 (Fla. 2d DCA 1992); Johnston v. Donnelly, 581 So. 2d 909, 910 (Fla. 2d DCA 1991); West, 576 So. 2d at 383.

Respondents also argue they merely intend to question Kirkland’s current health care providers about such non-privileged matters as scheduling deposition testimony and arranging medical records production. But that can be coordinated through the Kirklands’ attorneys, or if cooperation is not forthcoming, through notice and depositions, pursuant to the Florida Rules of Civil Procedure. Were unsupervised ex parte interviews allowed, medical malpractice plaintiffs could not object and act to protect against inadvertent disclosure of privileged information, nor could they effectively prove that improper disclosure actually took place. This makes respondents’ assurances that these issues can be handled on appeal hollow, to say the least. Petitioners’ remedy is here and now with this court or it does not exist.

Writ of Certiorari GRANTED; order QUASHED.

DIAMANTIS and THOMPSON, J.J., concur. . Franklin involved the 1988 version of this statute, which is substantially similar to the 1993 version.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Rudolph Acosta, M.D. v. Richter, 671 So. 2d 149 (Fla. 1996)
    …ich prohibits communications between a doctor and a third party regarding the medical condition of the doctor’s patient unless compelled by a subpoena for deposition, evidentiary hearing, or at trial”). The Fifth District, in Kirkland v. Middleton, 639 So. 2d 1002, 1003 (Fla. 5th DCA), review dismissed, 645 So. 2d 453 (Fla.1994), expressed its agreement with Franklin in holding that medical negligence defendants are not permitted to conduct ex parte interviews with a claimant’s physicians: We agree with our…
  • Weaver v. Stephen C. Myers, M.D., 229 So. 3d 1118 (Fla. 2017)
    …of the ex parte conference with the treating physician, See Kimes, 756 So. 2d at 1041. And yet it can hardly be argued that the dispute in Kimes was not "adversarial." . The majority suggests that Acosta adopted a quote from Kirkland v. Middleton, 639 So. 2d 1002, 1004 (Fla. 5th DCA 1994), which expressed a blanket concern about ex parte interviews and the complete lack of protection to Florida citizens from the disclosure of information "that is totally irrelevant to the claim.” Majority op. at 1133-34. But…
    1 / 2
  • …orneys of meeting privately or otherwise communicating ex parte with the plaintiff’s treating physicians. Acosta, 671 So. 2d at 152 (quoting West v. Branham, 576 So. 2d 381, 383 (Fla. 4th DCA 1991)) (emphasis added); see also Kirkland v. Middleton, 639 So. 2d 1002, 1004 (Fla. 5th DCA 1994) (prohibiting ex parte discussions between the plaintiffs treating physicians and defense counsel and noting that if such discussions were allowed, “medical malpractice plaintiffs could not object and act to protect against…

Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw