EDWARD COOPERSMITH, PETITIONER,
v.
ELIZABETH PERRINE, RESPONDENT

Fla. 4th DCA | 2012-06-27
No. 4D11-3215
TAYLOR and CIKLIN, JJ., concur., MAY, C.J., concurs specially with opinion.
91 So. 3d 246 Florida District Court of Appeal, Fourth District (2012) Positive Treatment
Cited by 8 cases

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Synopsis

The Florida Fourth District Court of Appeal granted a petition for certiorari, quashing a lower court's order compelling a defendant to provide summaries of his medical experts' opinions from other cases. The court found that such disclosure would violate the privacy rights of non-parties under Florida Statutes section 456.057(7)(a).


Holding

Yes, the court held that requiring a party to provide summaries of their medical experts' opinions from other cases invades the privacy rights of non-parties, as protected by Florida Statutes section 456.057(7)(a).


Headnotes

[1] Discovery requests for summaries of expert opinions and their bases from prior cases invade the privacy rights of non-parties when those opinions involve medical informat…

[2] Florida Statutes section 456.057(7)(a) prohibits the disclosure of a patient's medical records without written authorization, with limited exceptions, to protect patient…

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Key Quotes

“We grant the petition because the summaries will invade the privacy rights of non-parties, as protected by section 456.057(7)(a), Florida Statutes (2010).”

Establishes the primary reason for granting the petition.

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Facts & Procedural History

In a personal injury case, the defendant, Edward Coopersmith, was ordered to provide a "general summary of the opinions and basis of the opinions" of …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Edward Coopersmith, the defendant below in a personal injury case, petitions for certiorari review of a non-final order granting plaintiff Elizabeth Perrine’s motion to overrule objections to interrogatories.

Coopersmith takes issue with a specific subsection of an interrogatory, which requires Coopersmith to furnish a “general summary of the opinions and basis of the opinions” offered by his medical experts in other cases.1 We grant the petition because the summaries will invade the privacy rights of non-parties, as protected by section 456.057(7)(a)(3), Florida Statutes (2010). See Graham v. Dacheikh, 991 So.2d 932 (Fla. 2d DCA 2008); Crowley v. Lamming, 66 So.3d 355 (Fla. 2d DCA 2011); USAA Cas. Ins. Co. v. Callery, 66 So.3d 315 (Fla. 2d DCA 2011). In reaching our decision, we align our court with the Second District, whose reasoning is consistent with our views of a predecessor *247statute.2 See Crandall v. Michaud, 603 So.2d 637 (Fla. 4th DCA 1992), disapproved on other grounds, Elkins v. Syken, 672 So.2d 517, 522 (Fla.1996).

Section 456.057(7)(a), Florida Statutes, prohibits a health care practitioner from discussing a patient’s medical records without the patient’s written authorization unless one of the three detailed exceptions applies.3 Graham considered section 456.057(7) and held that it prohibits the disclosure of non-party compulsory medical examination reports without prior notice to all of the affected nonparties. Graham rejected redaction as a substitute for the statutory notice to the nonparty patients, noting that there was no argument made that notification would not be possible, and in fact, compliance with other requests revealed that it was possible.

Graham considered that the purpose of the discovery was to demonstrate the expert’s bias and concluded that “the fundamental rights of the nonparties may require more restrictive protections, and thus less intrusive means.... ” 991 So.2d at 937. In reaching its decision, the Second District distinguished the medical malpractice case of Amente v. Newman, 653 So.2d 1030 (Fla.1995), which the trial court in Graham had relied upon. Graham detailed the following four reasons when it concluded that Amente was not controlling: “(1) Amente was a medical negligence case; (2) the affected doctor was a party; (3) the discovery sought related to substantive issues in the case; and (4) the supreme court concluded that compliance with the statute was impossible.” 991 So.2d at 935; see also Crowley, 66 So.3d at 355 (applying Graham and quashing an order that required an expert physician to bring to his deposition copies of the reports generated for all of the compulsory medical examinations he performed during the three years in question and to testify to limited portions of the reports).

Although Graham seemed to suggest that the doctor’s impressions or conclusions at the end of the compulsory examination report, absent patient identifying information, would be a less intrusive alternative, the Second District subsequently rejected a discovery order that was tailored accordingly. Callery, 66 So.3d at 315; see also Crandall, 603 So.2d at 639. Significantly, the court concluded that Mr. Callery did not demonstrate an inability to comply with the statute’s notice provisions. The same is true of respondent in this case.

Moreover, Coopersmith’s responses to other interrogatories suggest that notification might be possible. See, e.g., Crowley, 66 So.3d at 359. We recognize that unlike *248 Graham and Crowley, the discovery here is being requested from a party. Such was the case in Cattery. While Allstate v. Boecher, 733 So.2d 993 (Fla.1999), permits discovery from a party surrounding the party’s relationship with an expert, the summaries and opinions sought within the interrogatory at issue are beyond Boecher’s “financial” bias purview and involve medical information of people who are not parties to this lawsuit. See Graham, 991 So.2d at 937.

Consequently, to protect against any intrusion into the privacy rights of non-parties, we grant the petition for certiorari, quash that portion of the trial court’s order requiring petitioner to produce information concerning nonparty compulsory medical examinations, and remand for further proceedings.

TAYLOR and CIKLIN, JJ., concur.

MAY, C.J., concurs specially with opinion.

MAY, C.J.

(specially concurring).

I concur with the majority in its reasoning and result, but write to express my concern over recent discovery issues we have seen. We are increasingly reviewing orders on discovery requests that go above and beyond those relevant to the case. Attorneys are propounding interrogatories and making requests for production, which require physicians to divulge private, confidential information of other patients, and to “create” documents.

In an effort to discredit medical witnesses for the other side, attorneys for both plaintiffs and defendants are exceeding the bounds of the rules of civil procedure, confidentiality laws, and professionalism by engaging in irrelevant, immaterial, burdensome, and harassing discovery. Parameters have already been expanded to allow both sides to explore financial interests of medical witnesses and the volume of referrals to those witnesses. See Elkins v. Syken, 672 So.2d 517 (Fla.1996). And now, attempts to expand the scope of that discovery to treating physicians as well as retained experts are usurping the limited resources of our trial courts. This not only creates unnecessary burdens on our over-strained justice system, it further taints the public’s view of our profession.

Concurrence
MAY, C.J.

MAY, C.J.

(specially concurring).

I concur with the majority in its reasoning and result, but write to express my concern over recent discovery issues we have seen. We are increasingly reviewing orders on discovery requests that go above and beyond those relevant to the case. Attorneys are propounding interrogatories and making requests for production, which require physicians to divulge private, confidential information of other patients, and to “create” documents.

In an effort to discredit medical witnesses for the other side, attorneys for both plaintiffs and defendants are exceeding the bounds of the rules of civil procedure, confidentiality laws, and professionalism by engaging in irrelevant, immaterial, burdensome, and harassing discovery. Parameters have already been expanded to allow both sides to explore financial interests of medical witnesses and the volume of referrals to those witnesses. See Elkins v. Syken, 672 So. 2d 517 (Fla.1996). And now, attempts to expand the scope of that discovery to treating physicians as well as retained experts are usurping the limited resources of our trial courts. This not only creates unnecessary burdens on our over-strained justice system, it further taints the public’s view of our profession.


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Cited By

  • Christina M. Paylan, M.D. v. Fitzgerald, 223 So. 3d 431 (Fla. 2d DCA 2017)
    …, an order that requires a health care practitioner to respond to interrogatories that will disclose confidential medical information in "violation of section 456.057(7) departs from the essential requirements of the law. See Coppersmith v. Perrine, 91 So. 3d 246 (Fla. 4th DCA 2012). Although Respondents do not dispute that they did not provide L.B. with notice of their intent to obtain the disputed information from Dr. Paylan, they argue that the trial court properly directed Dr. Paylan to respond with L.B…
  • Brana v. Adolfo Roura, 144 So. 3d 699 (Fla. 4th DCA 2014)
    …tice provisions [*700] of section 456.057(7)(a), Florida Statutes (2012), which requires notice to patients whose medical records are sought before issuance of a subpoena for the records by a court of competent jurisdiction. Coopers-mith v. Perrine, 91 So. 3d 246 (Fla. 4th DCA 2012). Respondent’s subpoenas issued to insurance carriers requiring disclosure of financial information concerning payments made by those carriers to Dr. Grabel for services provided as a litigation expert seek information protected…
  • Orthopedic Ctr. of S. Fla. v. Sode, 274 So. 3d 1127 (Fla. 4th DCA 2019)

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