Florida Court Bans Private Doctor-Lawyer Meetings in Malpractice Cases

By Bill Kaczor | December 27, 2012
Mistrial for Doctor Accused of Malpractice

Malpractice defendants must not try to circumvent a Florida law that bars them from obtaining confidential medical information about plaintiffs from other doctors or dentists who are treating them, the state Supreme Court said in a recent ruling.

The 5-2 ruling prohibits private meetings about cases between lawyers and plaintiffs’ other doctors even if they intend to discuss only non-privileged matters.

The decision came in the case of Dr. Lanny Garvar, a Tamarac dentist, who was sued by former patient Ramsey Hasan.

Hasan alleged that Garvar failed to diagnose and treat his dental condition, making it worse and resulting in a bone infection that left Hasan with permanent and severe physical and emotional damage.

Garvar’s insurer, OMS National Insurance Co., also covers Dr. Jennifer Schaumberg, an oral surgeon who later treated Hasan. The majority quashed two lower court decisions that would have permitted Schaumberg’s lawyer, who was selected and hired by the insurance company, to discuss non-privileged aspects of the Garvar case with her.

That could lead to inadvertent disclosures of confidential information, Justice R. Fred Lewis wrote for the majority.

“Garvar’s attempt to skirt the protections afforded by the patient confidentiality statute are to no avail,” Lewis wrote.

The 1988 law says that “the medical condition of a patient may not be discussed with any person other than the patient or the patient’s legal representative.”

Lewis cited a 1996 Supreme Court opinion that said such meetings between non-party doctors and defense lawyers were prohibited even if the physicians weren’t required to say anything.

“We believe it is pure sophistry to suggest that the purpose and spirit of the statute would not be violated by such conferences,” the justices concluded in that case.

A trial judge and the 4th District Court of Appeal in West Palm Beach had distinguished Garvar’s case from the 1996 ruling because the request was for Schaumberg to meet with her own attorney, not Garvar’s lawyer, and they were ordered not to discuss Hasan’s confidential medical information.

Garvar contended they’d instead talk about such matters as Schaumberg’s potential for legal exposure from the lawsuit and the effect on her certification or possible negative media exposure if she should testify.

Lewis wrote that’s the kind of “sophistry” the high court was worried about in the earlier case.

Chief Justice Ricky Polston and Justice Charles Canady, the high court’s most reliably conservative members, dissented.

They agreed with the lower courts that Garvar’s case did not conflict with the 1996 ruling so the Supreme Court lacked jurisdiction. The majority ruling also improperly prohibits non-party physicians from obtaining legal counsel they are entitled to from their insurance company or from obtaining any legal advice for that matter, they argued.

“I am unaware of any circumstance where this court has prohibited someone from consulting a lawyer for legal advice,” Polston wrote.

If the dissent prevailed, insurance companies then could simply hire lawyers to circumvent the law’s confidentiality protection, Lewis wrote.

 

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