16 Fla. L. Weekly Supp. 35a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 16 Fla. L. Weekly Supp. 732a
Insurance — Personal injury protection — Discovery — Error to compel physician who conducted independent medical examination to disclose IME and peer review reports for past three years without notice to nonparty PIP plaintiffs
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. ADVANCED CHIROPRACTIC & MEDICAL CENTER CORPORATION, a/a/o Kenson Louis-Juene, Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-034048 (02). L.T. Case No. 07-20786. September 11, 2008. Counsel: Lara J. Edelstein, Coral Gables. Kathy Eikosidekas and Amir Fleischer, Marks & Fleischer, Fort Lauderdale.
[Editor’s note: Lower court order published at 15 Fla. L. Weekly Supp. 946b]
ORDER
(JOHN B. BOWMAN, J.) THIS CAUSE is before the Court on a Petition for Writ of Certiorari filed by Petitioner, United Automobile Insurance Company. For the reasons hereinafter stated, the Petition for Writ of Certiorari is granted.
In this PIP case, Respondent subpoenaed Dr. Michael Mansdorf to produce copies of all IME and peer reviews that Dr. Mansdorf performed pursuant to Fla. Stat. §627.736(7)(a) for the past three years (from approximately October 2004 through and including October 2007). Dr. Mansdorf is the physician selected by the Petitioner to conduct an independent medical examination on the patient. Dr. Mansdorf filed an objection to the subpoena by way of a letter dated March 14, 2008, charging that it is “abusive, unnecessary, time consuming and costly” and that it would cost him $395,833 to produce these records. On July 1, 2008, the trial court granted Respondent’s discovery request regarding Dr. Mansdorf [15 Fla. L. Weekly Supp. 946b].
When a petition for writ of certiorari is before the court, it must be reviewed to determine if the petitioner has made a showing that if certiorari is not granted, material injury resulting in irreparable harm will result. Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996). For an appellate court to reverse a trial court order by writ of certiorari, the order must also be a violation of clearly established law that, if upheld, would result in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000).
The Second District Court of Appeals had a similar discovery issue before it. See Graham v. Dacheikh, 2008 WL 3851844 (Fla. 2nd DCA 2008) [33 Fla. L. Weekly D2015a]. In Graham, an automobile negligence case, a medical examination was performed on one of the plaintiffs pursuant to Fla. R. Civ. P. 1.360. The plaintiffs sought production of all of the examining physician’s reports from 2004 to 2006. The trial court compelled the examining physician to disclose reports from prior examinations of personal injury plaintiffs without notice to such nonparties and without adequate protection of their privacy rights. The Second District held that Fla. Stat. §456.057(7), authorizing release of medical records without patient permission pursuant to a subpoena, required proper notice to the patient even if the identifying information was redacted. And in quashing the discovery order, the Second District found that the trial court departed from an essential requirement of the law by compelling discovery of medical records belonging to nonparties who did not receive notice of the disclosure.
Similarly, in the instant case, Respondent is seeking extensive medical records from Dr. Mansdorf for the past three years. Fla. Stat. §456.057(7)(a)(3) provides medical 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.
The trial court departed from the essential requirements of law by compelling Dr. Mansdorf to disclose IME and peer reviews for the past three years without notice to nonparty personal injury plaintiffs pursuant to §456.057(7)(a)(3).
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED. The trial court’s discovery order is quashed.
