16 Fla. L. Weekly Supp. 817a
Online Reference: FLWSUPP 169TAVER
Insurance — Personal injury protection — Discovery — Medical records of nonparties — Appeals — Certiorari — Order to produce independent medical examination and peer review reports of nonparties and expert’s financial information meets threshold jurisdictional requirement for writ of certiorari where disclosure of reports and financial information will cause material injury that cannot be corrected on appeal — Requirement to disclose medical records of nonparties without notice to nonparties required by section 456.057(7) violated law — Error to compel production of expert’s financial information without finding unusual or compelling circumstances requiring production — Discovery order quashed
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. ADVANCE HEALTH SERVICES, III, INC., a/a/o Janibelky Taveras, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-166 AP. L.C. Case No. 08-3692 CC 26 03. July 7, 2009. On certiorari review from the County Court of Miami-Dade County, Hon. Patricia Marino Pedraza. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of the General Counsel, for the Petitioner. Martin I. Berger, Samole & Berger. P.A., for Respondent.
(Before FRIEDMAN, MUIR, and BAILEY, JJ.)
(PER CURIAM.) Advance Health Services, III, Inc. (“Medical Provider”) filed a complaint against United Automobile Insurance Company (“United Auto” or “Insurer”). During discovery, the medical provider issued a subpoena duces tecum, without deposition, requesting the following relevant items: 1) a list of each and every independent medical examination report and peer review report from February 27, 2006 to the present prepared by the expert witness at the insurer’s request, and 2) “[a]ny and all documents reflecting total amount of monies paid” to the expert witness by the insurer including “tax documents such as 1099s, W-2s, copies of checks and check stubs.”
The insurer filed objections and a motion for a protective order. The county court heard arguments and ordered the expert to produce the independent medical examinations and peer reviews, completed in the past three (3) years, and gave him permission to redact patient names and identifying information. The county court also ordered the expert to provide the total income paid to him by the insurer and others within the last three (3) years, including 1099s, W-2s, copies of checks, and check stubs. The insurer requests that we quash the non-final order to produce the independent medical examinations, peer review reports, and the income paid to the expert.
Florida’s appellate courts may issue a writ of certiorari “for those situations where the order results in a material injury which cannot be corrected on appeal and departs from the essential requirements of the law.” Sardinas v. Lagares, 805 So. 2d 1024, 1025 (Fla. 3d DCA 2001) (emphasis added). “ ‘The first two factors are jurisdictional, and an assessment of jurisdiction must be made prior to reaching the third’.” Id. (citing Beekie v. Morgan, 751 So. 2d 694, 698 n.4 (Fla. 5th DCA 2000)).
The burden to demonstrate the irreparable material injury rests with the petitioner. See Bernheim v. Broberg, 973 So. 2d 1284 (Fla. 4th DCA 2008) (dismissing the certiorari petition “as the petitioner failed to meet his burden of demonstrating the ‘jurisdictional’ ‘irreparable harm’ prong of certiorari review”); Russo v. Germain Motor Co., 939 So. 2d 212 (Fla. 1st DCA 2006). The medical provider argued that “certiorari review is only to be used when a party faces a discovery order that may cause it to suffer permanent harm due to the disclosure of sensitive information,” and that the insurer made “no allegation of such [disclosure of sensitive] information in this case,” thus causing the instant certiorari petition to fail. Here, the insurer vaguely asserted its material injury. Nonetheless, we find that the insurer demonstrates a material injury.
The insurer argued that if the expert witness refuses to comply with the subpoena, the medical provider will move to strike the expert witness, which the county court will likely grant. The insurer’s argument that the county court will strike the expert witness weakens its plea for common law certiorari relief for a very significant reason: the insurer clearly maintains a post-judgment appellate remedy to review striking an expert witness. See Sardinas, 805 So. 2d at 1026 n.3 (stating that “we see no reason why this court on plenary appeal would be unable to conduct a meaningful review of the order striking Dr. Glatzer, and reverse if deemed erroneous”); Rodriguez v. Feinstein, 793 So. 2d 1057, 1059-1061 (Fla. 3d DCA 2001); Sikes v. Seaboard Coast Line Railroad Co., 487 So. 2d 1118, 1122 (Fla. 1st DCA 1986).
Although the insurer may remedy striking the expert witness by post-judgment appeal, disclosing the confidential medical information and patient identity makes common law certiorari an appropriate method to review this non-final discovery order. Graham v. Dacheikh, 991 So. 2d 932, 934 (Fla. 2d DCA 2008). Also, the insurer may not remedy revealing the expert’s financial information since these documents may contain information revealing patient identification. Thus, the insurer lacks an appellate remedy. See Wilder v. Wilder, 993 So. 2d 182, 184 (Fla. 2d DCA 2008). We find that the insurer meets the threshold jurisdictional requirement for the extraordinary writ of certiorari.
We now consider whether the trial court violated the essential requirements of the law by requiring the expert to disclose the independent medical examination and peer review reports. The Dacheikh appellate court quashed a trial court order because it required “the disclosure of confidential medical information of nonparties without notice to those parties as required by” Florida Statute § 456.057(7)1 “and without adequate protections to protect the privacy rights of those nonparties under the Florida Constitution.” 991 So. 2d at 934 (emphasis added). The Dacheikh appellate court reasoned that the plaintiffs-Dacheikhs “made no effort to provide or to have the court provide‘proper notice‘to the affected patients.” Id. at 935 (emphasis added). The district court considered that the defendants-Grahams’ “compliance” with the discovery order created “substantial risks that the Dacheikhs’ attorney could identify at least some of these patients when provided with the production of the items,” even after redacting names and social security numbers. Id. (emphasis added).
In the instant matter, the county court ordered the expert witness to produce the independent medical examinations and peer review reports from the past three (3) years. The lower court granted the medical examiner permission to redact the patients’ names and any other identifying information and did not order in camera review. The non-final order does not require the insurer to give notice to the medical patients regarding disclosure. The county court did not comply with section 456.057(7)’s notice requirement, thus violating the law.
Regarding disclosing the expert’s financial information, the insurer argues that pursuant to Fla. R. Civ. P. 1.280(b)(4)(A), “an expert may be required to produce financial and business records only under the most unusual and compelling circumstances.” The Third District Court of Appeal resolved a case where a trial court required the medical expert to produce “1099 tax forms for the last three years” for income earned from independent medical examinations. Syken v. Elkins, 644 So. 2d 539, 542 (Fla. 3d DCA 1994), aff’d, 672 So. 2d 517 (Fla. 1996) (footnote omitted). The district court clarified that the “production of the expert’s business records, files, and 1099’s may be ordered produced only upon the most unusual or compelling circumstances.” Id. at 546 (emphasis added). It further determined that it found “no sound reason to require disclosure of exact income figures.” Id. at 544.
In the instant matter, the trial court directed the insurer’s medical expert to provide the total income paid him by the insurer and others within the last three (3) years, including 1099’s, W-2’s, copies of checks, and check stubs. However, the trial court did not provide any factual findings, in its written order, regarding any “unusual” or “compelling circumstances” requiring production. Syken, 644 So. 2d at 546. During the motion hearing, the trial court made no oral findings regarding unusual or compelling circumstances. Because the trial court’s order did not state unusual or compelling circumstances, it violated the essential requirements of the law by requiring the expert witness to produce the financial information.
We quash the non-final discovery order and grant the writ of certiorari. On May 4, 2009, the insurer filed a motion for review of denial of the stay pending certiorari review. Because we issue the writ, we deny the motion for review of denial of the stay as moot. T.V. Dimensions, Inc. v. Lennar Florida Props., 630 So. 2d 604 (Fla. 3d DCA 1993).
WRIT GRANTED; NON-FINAL ORDER QUASHED.
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1See § 456.057(7)(a)(3), Fla. Stat. (2009) (stating that records may be provided without written authorization 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”) (emphasis added). Because we conclude that the county court erred by not requiring notice to the affected patients, we find it unnecessary to discuss whether the county court issued the subpoena as a court of competent jurisdiction.
