21 Fla. L. Weekly Supp. 501a
Online Reference: FLWSUPP 2106FRANInsurance — Personal injury protection — Discovery — Medical records of nonparties — Error to order insurer to comply with request to produce records of peer review reports that medical expert prepared before and after he prepared report concerning insured where medical provider has not complied with statutory requirement to provide notice to affected nonparties that are subjects of those reports
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. ACOMED HEALTHCARE, LLC, A/A/O EVINA FRANCOIS, Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 13-010040CACE. L.T. Case No. 12-010123COCE. December 20, 2013. Petition for Writ of Certiorari from the County Court for the Seventeenth Judicial Circuit, Broward County, Peter B. Skolnik, Judge. Counsel: Nancy W. Gregoire, of Kirschbaum, Birnbaum, Lippmann & Gregoire, PLLC, Fort Lauderdale, for Petitioner. Matt D. Hellman, of Matt Hellman, P.A., Plantation, for Petitioner. Adolfo Podrecca, of Fazio, DiSalvo, Cannon, Abers, Podrecca, Fazio & Carroll, Fort Lauderdale, for Respondent.
[Editor’s note: Final judgment in favor of respondent was entered and affirmed on appeal. FLWSUPP 2609FRAN (State Farm Mutual Automobile Ins. Co. v. Acomed Healthcare Center, LLC, a/a/o Evina Francois, Case No. CACE15-019877 (AP) (17th Jud. Circuit), 11-15-2018)]
FINAL ORDER GRANTINGPETITION FOR WRIT OF CERTIORARI
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“Petitioner”) seeks a writ of certiorari to quash a portion of the County Court’s March 11, 2013 Order (the “Order”). This Court, having carefully considered the Petition for Writ of Certiorari, the Appendix to Petition for Writ of Certiorari, Respondent’s Response to Writ of Certiorari, the Appendix to Response to Writ of Certiorari, the Reply to Response to Petition for Writ of Certiorari, the Supplemental Appendix to Reply to Response to Petition for Writ of Certiorari, the applicable law, and being duly advised in the premises, dispenses with oral argument and finds that the Petition for Writ of Certiorari must be granted as set forth below.
In the underlying matter, Acomed Healthcare LLC (“Respondent”) filed a complaint to recover PIP benefits. Petitioner filed its affirmative defenses asserting, inter alia, that based upon the peer review report of Dr. Michael Propper (“Dr. Proppper”), the claim was barred. Respondent served its Request for Production, which demanded copies of the 20 peer review reports that Dr. Propper prepared before and the 20 peer review reports that Dr. Propper prepared after the report in the underlying matter. The Request for Production allowed for the redaction of patient identity, and medical history and examination information. Petitioner objected to the Request for Production on the following grounds: “irrelevant, immaterial, overly broad, unduly burdensome, harassing, HIPAA invasion, invasion of non-party’s privacy rights, work product, claim file privileged, vague and ambiguous.” The County Court held a hearing on the Request for Production and Petitioner’s objections. Thereafter, the County Court entered the production Order requiring Petitioner to produce redacted copies of the peer review reports. Petitioner seeks review of that portion of the County Court’s Order.
Graham v. Dacheikh, 991 So. 2d 932 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D2015a], considered section 456.057(7), Florida Statutes and held that it prohibits the disclosure of nonparty compulsory medical examination reports without prior notice to all of the affected nonparties. See § 456.057(7), Fla. Stat.; Graham, 991 So. 2d at 934. Graham also rejected redaction as a substitute for statutory notice to nonparty patients. See Id. at 935; Coopersmith v. Perrine, 91 So. 3d 246, 247 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D1513a]; USAA Cas. Ins. Co. v. Callery, 66 So. 3d 315 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1230a]; Crandall v. Michaud, 603 So. 2d 637, 639-40 (Fla. 4th DCA 1992). Thus, the County Court’s Order departs from the essential requirements of the law and causes irreparable injury to the privacy rights of nonparties who have been given no notice and no opportunity to be heard in this proceeding. See Graham, 991 So. 2d at 932; State Farm Mut. Auto. Ins. Co. v. Eunice J. Park, D.C., P.A., No. 11-026262CACE (Fla. 17th Cir. Ct. Aug. 27, 2013) [21 Fla. L. Weekly Supp. 132a].
In relying on Amente v. Newman as the basis for the production of redacted copies of the peer review reports, the Respondent and the County Court apply the wrong law. See Amente v. Newman, 653 So. 2d 1030, 1032 (Fla. 1995) [20 Fla. L. Weekly S172a]. In the Amente case, which was a medical malpractice case, the court upheld production of a defendant physician’s medical records for all patients similar to the plaintiff for a two-year period, without notice to such patients, provided that the records were redacted to protect patient identity. Id.“Amente is not controlling in this case for at least four reasons: (1) Amente was a medical negligence case; (2) the affected doctor was a party; (3) the discovery sought related to substantive issues in the case;1 and (4) the supreme court concluded that compliance with the statute was impossible.” Graham, 991 So. 2d at 935. Accordingly, it is
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby GRANTED. The portion of the County Court’s March 11, 2013 Order requiring production of 20 peer review reports prior to and 20 peer review reports subsequent to the report in the underlying matter is hereby QUASHED. (STREITFELD, GATES and PHILLIPS, JJ.,concur.)
__________________
1The hearing transcript reveals that Respondent seeks to use the peer review reports, not to discover relevant evidence to prove its case, but to provide a basis for impeachment of the peer review doctor. The contents of such reports are only slightly relevant to the issue of credibility. See Crandall, 603 So. 2d at 639. Impeachment information is available from records of the insurer’s payments to the medical expert, rather than delving into the medical records of other persons. See Id.
* * *
