16 Fla. L. Weekly Supp. 303a
Online Reference: FLWSUPP 164MICHE
Insurance — Personal injury protection — Discovery — Medical records of nonparties — Error to compel insurer’s expert witness to produce reports of all IME and peer reviews performed in past three years without notice to non-party personal injury patients
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. ADVANCED CHIROPRACTIC & MEDICAL CENTER CORPORATION, a/a/o Thamar Michel, Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-37593 (08). L.T. Case No. 08-3212 COCE 56. December 5, 2008. Counsel: Lara J. Edelstein, Coral Gables. Roberts J. Bradford, Jr., Law Office of R.J. Bradford, Jr. P.C., Johnson City, TN. Amir Fleischer, Marks & Fleischer, Fort Lauderdale.
ORDER
(RONALD J. ROTHSCHILD, 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 served a Subpoena Duces Tecum without Deposition upon non-party and Petitioner’s expert opinion witness, Dr. Neil Fleischer to produce copies of all IME and peer reviews that Dr. Fleischer performed pursuant to Fla. Stat. §627.736(7) for the past three years before the date of the last report prepared in this case. Dr. Fleischer is the physician selected by the Petitioner to conduct an independent medical examination on the patient. Dr. Fleischer filed an objection to the subpoena by way of a letter dated May 20, 2008, charging that “The request for the subpoenaed information would require considerable time and expense to be able to provide the information. To be able to provide the records I need to redact the names of all the people in the reports, to comply with HIPPA. To perform this service would require a considerable amount of time. The cost to provide this service would cost $400 per hour. However, I would not be able to accumulate this information in such an amount of time.” On July 31, 2008, the trial court, following a hearing on the Motion, granted Respondent’s Motion to Compel, requiring the Petitioner’s expert witness to “produce all IME & peer review reports he has prepared on behalf of all insurers including outside vendors in 2007/2008.”
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. Fleischer 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. Fleischer 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.
