Written by Jonathan M. Hixon:
The Florida Supreme Court has provided even greater protection to patients by prohibiting insurance companies and their lawyers from talking to your doctors. Just before the New Year, the Florida Supreme Court handed down its decision in Hasan v. Garvar, reversing the Fourth District Court of Appeal and bolstering the strength of doctor-patient confidentiality in medical malpractice cases.
The facts of the case begin as any other: Ramsey Hasan instituted a medical malpractice lawsuit against Lanny Garvar, D.M.D and his practice for failure to diagnose and treat a dental condition that resulted in a serious bone infection which caused severe and permanent damage. In an attempt to relieve his dental complications, Mr. Hasan sought care from an oral and maxillofacial surgeon, Jennifer Schaumberg, D.M.D. Dr. Schaumberg was not a party to the case, however Mr. Hasan sought to schedule her for deposition in order to better understand the treatment he was undergoing. Here is where the facts take an extraordinary turn: while scheduling Dr. Schaumberg’s deposition, Mr. Hasan learned that Dr. Garvar’s insurance company also insured Ms. Schaumberg and had hired a lawyer to consult with Dr. Schaumberg in order to engage in a private, pre-deposition conference. This obviously concerned Mr. Hasan, who immediately moved for a protective order to preclude any such conference between the lawyer hired by the insurance company and Dr. Schaumberg, citing to doctor-patient confidentiality. The trial court denied Mr. Hasan’s motion, and the Fourth District Court of Appeal denied Mr. Hasan’s petition for writ of certiorari, citing the section of the trial court’s order that prohibited the insurance company’s lawyer and Dr. Schaumberg from discussing privileged medical information.
Fortunately, the Florida Supreme Court did not see eye-to-eye with the Fourth District Court of Appeal on this issue and quashed their opinion, holding that the physician-patient “privilege prohibits ex parte meetings between nonparty treating physicians and other outside the confidential relationship whether or not they intend to discuss privilege or non-privileged matters without measures to absolutely protect the patient and the privilege.” The majority of the Court, in the 5-2 decision, focused on the broad scope of Florida Statute section 456.057(8) which provides an “expansive physician patient privilege of confidentiality for the patient’s personal information with only limited, defined exceptions.”
The effect of this decision is far reaching. Oftentimes, insurance companies and defense lawyers attempt to speak with a Plaintiff’s treating doctors under the guise that they will not be discussing anything specific to the patient or the case. However, as the Florida Supreme Court noted in its opinion, such a conference creates a litany of problems that could potentially end up invading and compromising a very sacred privilege that exists between a doctor and his/her patient. Now, these private conversations between your doctor and an insurance company or defense lawyer will not occur, thus preserving the doctor-patient privilege.