16 Fla. L. Weekly Supp. 931a
Online Reference: FLWSUPP 1610COMP
Insurance — Personal injury protection — Discovery — Medical records of nonparties — Error to compel insurer’s medical expert to disclose independent medical examination and peer reviews performed in past three years on nonparties without notice to nonparties
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. COMPLETE REHAB & MEDICAL CENTERS OF PLANTATION, INC., a/a/o [sic] Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 09-008328 (08). L.T. Case No. 08-01691. April 29, 2009. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of the General Counsel, Miami. Natalie Giachos, Margate.
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 subpoenaed Dr. Joseph Costello to produce copies of all IME and peer reviews that Dr. Costello performed pursuant to Fla. Stat. §627.736(7)(a) for the past three years (from approximately October 2005 through and including October 2008). Dr. Costello is the physician selected by the Petitioner to conduct an independent medical examination on the patient. Petitioner filed a Motion for Protective Order and Objections to Duces Tecum on October 27, 2008, charging that the request is “irrelevant, immaterial, overly broad, unduly burdensome, not likely to lead to the discovery of admissible evidence, and a violation of non-party patient’s privacy rights. . .” On January 12, 2009, the trial court granted Respondent’s discovery request regarding Dr. Costello.
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, anautomobile 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. Costello 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. Costello 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.
