NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CHRISTINA M. PAYLAN, M.D., )
)
Petitioner, )
)
v. ) Case No. 2D17-2071
)
TIMOTHY J. FITZGERALD, ESQ., and )
FARMER & FITZGERALD, P.A., )
)
Respondents. )
___________________________________)
Opinion filed July 14, 2017.
Petition for Writ of Certiorari to the Circuit
Court for Hillsborough County; Gregory P.
Holder, Judge.
Christina M. Paylan, pro se.
Matthew Farmer, Tampa, for Respondents.
BADALAMENTI, Judge
Dr. Christina Paylan seeks certiorari review of an interlocutory discovery
order which directs her, in part, to produce confidential medical information to
Respondents, Timothy Fitzgerald and Farmer & Fitzgerald, P.A. Because the trial
court's order departs from the essential requirements of the law and causes irreparable
harm by failing to comply with the substantive notice and authorization requirements set
forth in section 456.057(7)(a), Florida Statutes (2016), we grant the petition and quash
the order on review with respect to interrogatory number 8.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the underlying litigation, Dr. Paylan filed a complaint against
Respondents, alleging legal malpractice, among other things, with respect to their
representation of her in several criminal cases. In case number 11-CF-8930 the State
charged Dr. Paylan with two counts of obtaining a controlled substance by fraud and
one count of possession of a controlled substance, Demerol. Dr. Paylan allegedly wrote
three unlawful prescriptions for Demerol to patient, "L.B." L.B. denied that she
authorized Dr. Paylan to obtain a controlled substance in her name or that she had any
medical procedure scheduled with Dr. Paylan that required the use of Demerol.
Ultimately, those criminal charges were dismissed.
In the context of the legal malpractice litigation, Respondents served Dr.
Paylan with interrogatories. In interrogatory number 8, they asked Dr. Paylan to "[l]ist all
the procedures and dates the procedures were performed or were scheduled to be
performed that required [her] to use Demerol on patient LB between May 20, 2011 and
June 30, 2011." Dr. Paylan objected to the interrogatory, arguing that responding to it
would cause her to violate the Health Insurance Portability and Accountability Act of
1996 (HIPAA)1 unless Respondents first obtained a release from L.B. for the requested
confidential medical information. Dr. Paylan argued that Respondents should be
required to contact L.B.'s attorney or L.B. to obtain authorization for release of the
information. If they did so, she would release "whatever information she had." The trial
1
Pub. L. No. 104-191, 110 Stat. 1936 (1996).
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court found the information requested by Respondents to be relevant to the issues in
the legal malpractice case, overruled Dr. Paylan's objection, and ordered her to respond
to the interrogatory within twenty-five days. It further provided in its order that "[t]he
records shall remain under seal and not released to anyone except counsel of record,
the parties themselves or any expert."
II. THE ARGUMENTS ON REVIEW
In her petition, Dr. Paylan argues that the trial court departed from the
essential requirements of the law and caused irreparable harm by ordering her to
release L.B.'s confidential medical information without (1) requiring an authorization for
release or (2) providing L.B. with notice and an opportunity to be heard before the
information was disclosed. In addition to citing HIPAA, she cites to section 456.057 in
support of her position. She requests that we quash the trial court's order with respect
to interrogatory number 8.
Respondents point out that L.B. was interviewed and deposed on multiple
occasions in the context of both the criminal case and a medical license proceeding
against Dr. Paylan. In every instance, L.B. denied that she had any medical treatment
scheduled with Dr. Paylan during June 2011 that would have required the use of
Demerol. Furthermore, in a November 18, 2011, e-mail to Mr. Fitzgerald, Dr. Paylan
stated that L.B. had consented to the release of her medical records.
Respondents argue that the information they sought in interrogatory
number 8 is relevant to their defense of the legal malpractice case because Dr. Paylan
must allege and prove that she is actually innocent of the criminal charges from which
her legal malpractice claim originated. See Cira v. Dillinger, 903 So. 2d 367, 370-71
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(Fla. 2d DCA 2005). As prior counsel of record in the criminal case, Respondents have
some, but not all, of L.B.'s medical records. They also seek Dr. Paylan's disclosure of
any procedures that were scheduled to be performed on L.B. during May and June
2011—contrary to L.B.'s testimony—that required the use of Demerol. Respondents
also point out that the trial court protected L.B.'s privacy by redacting her name and by
limiting the use of the information to review by counsel of record, the parties, and their
experts. Accordingly, Respondents request that the petition be denied.
III. ANALYSIS
To be entitled to certiorari relief with respect to an interlocutory order, a
petitioner must establish that the order departs from the essential requirements of the
law resulting in material injury for the remainder of the case that cannot be remedied on
direct appeal. Trucap Grantor Tr. 2010-1 v. Pelt, 84 So. 3d 369, 371 (Fla. 2d DCA
2012). Orders that require disclosure of confidential medical information meet the
irreparable harm requirement for certiorari review because once such information is
improperly disclosed, the harm caused by that disclosure cannot be undone. USAA
Cas. Ins. Co. v. Callery, 66 So. 3d 315, 316 (Fla. 2d DCA 2011). We must thus
determine whether the trial court's order departs from the essential requirements of the
law.
HIPAA only preempts state laws relating to substantive privacy rights
concerning individually identifiable health information which are less stringent than
HIPAA's privacy protections. 45 C.F.R. § 160.203(b) (2013); see also Lemieux v.
Tandem Health Care of Fla., Inc., 862 So. 2d 745, 748 n.1 (Fla. 2d DCA 2003).
Because HIPAA permits disclosure of "protected health information in the course of any
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judicial or administrative proceeding . . . [i]n response to an order of a court" without
notice or authorization, it appears that section 456.057(7)(a) provides greater protection
than HIPAA in this context so long as the subpoena is accompanied by an order of a
court. Compare 45 C.F.R. § 164.512(e)(1)(i) (2013), with (e)(1)(ii). Accordingly, we
must determine whether the trial court's order complies with the requirements of section
456.057.
Section 456.057(7) provides in pertinent part as follows:
(7)(a) Except as otherwise provided in this section and in s.
440.13(4)(c), such records may not be furnished to, and the
medical condition of a patient may not be discussed with,
any person other than the patient, the patient's legal
representative, or other health care practitioners and
providers involved in the patient's care or treatment, except
upon written authorization from the patient. However, such
records may be furnished without written authorization under
the following circumstances:
....
3. 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.) Thus, as we have previously explained, "[s]ection 456.057(7)
contains a broad prohibition preventing a health care practitioner who generates a
medical record for a patient from furnishing that record to 'any person other than the
patient or the patient's legal representative . . . except upon written authorization of the
patient' " with certain, limited exceptions, including the issuance of a subpoena with
notice to the patient. Graham v. Dacheikh, 991 So. 2d 932, 934 (Fla. 2d DCA 2008).
The plain language of the statute "unequivocally creates 'a broad and express privilege
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of confidentiality as to the medical records and the medical condition of a patient.' "
Crowley v. Lamming, 66 So. 3d 355, 358 (Fla. 2d DCA 2011) (quoting Acosta v. Richter,
671 So. 2d 149, 154 (Fla. 1996)). A trial court's order that requires production of
medical records in violation of section 456.057(7) departs from the essential
requirements of the law and causes irreparable harm. Graham, 991 So. 2d at 937; see
also Callery, 66 So. 3d at 317. Similarly, an order that requires a health care
practitioner to respond to interrogatories that will disclose confidential medical
information in violation of section 456.057(7) departs from the essential requirements of
the law. See Coopersmith v. Perrine, 91 So. 3d 246 (Fla. 4th DCA 2012).
Although Respondents do not dispute that they did not provide L.B. with
notice of their intent to obtain the disputed information from Dr. Paylan, they argue that
the trial court properly directed Dr. Paylan to respond with L.B.'s confidential medical
information based upon L.B.'s alleged prior authorization and prior disclosure of the
information in the context of other litigation. There are several problems with this
argument.
First, the only evidence that L.B. authorized the release of the requested
information is in an e-mail sent from Dr. Paylan to Mr. Fitzgerald in November 2011, in
which Dr. Paylan stated that "B" and "M," not L.B., had authorized the release of their
medical records. Respondents have not provided an actual written authorization from
L.B., and the e-mail reference does not clearly demonstrate that authorization was
obtained from L.B. as opposed to some other patient, like "B" or "M." Moreover, nothing
in the e-mail demonstrates the scope of the authorization. The e-mail is from 2011, and
nothing in the e-mail or the record reflects the time period for which any such
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authorization would be in effect. The e-mail reference to an authorization was made
more than six years before Respondents sought confidential medical information from
Dr. Paylan for L.B. in February 2017.
Next, Respondents' references to L.B.'s prior testimony and interviews
have similar problems. All of those prior disclosures were made between 2011 and
2013 in the context of other cases, not the underlying legal malpractice proceeding.
Moreover, the information that was disclosed was within the control of L.B. Although
the information requested in this matter relates to the subject of L.B.'s prior disclosures,
Respondents are seeking L.B.'s confidential medical information that is within Dr.
Paylan's control and information that refutes L.B.'s prior disclosures. In that sense,
Respondents are not seeking the same information previously obtained from L.B.
See Colonial Med. Specialties of S. Fla., Inc. v. United Diagnostic Labs., Inc., 674 So.
2d 923, 923 (Fla. 4th DCA 1996) ("The nature of the dispute, and the fact that
respondent may already have in its records some of this patient information, does not
negate the rights of such non-party patients to privacy and confidentiality as to their
personal information."); see also Sachs v. Innovative Healthcare, Inc., 799 So. 2d 355,
358 (Fla. 3d DCA 2001) (quoting Colonial for the foregoing proposition).
In addition, Respondents do not argue that they cannot comply with the
statute by obtaining a written authorization from L.B. or by providing her with the
requisite notice. See Graham, 991 So. 2d at 935-37 (recognizing that the supreme
court's decision in Amente v. Newman, 653 So. 2d 1030 (Fla. 1995), at most permitted
a court to override the requirements of section 456.057 if a party makes a showing that
compliance with the statute is impossible); see also Callery, 66 So. 3d at 317 (following
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Graham). In fact, their arguments suggest that they have the ability to contact L.B.
through her prior counsel to either obtain her authorization or provide her with notice.
Although it seems that L.B. will almost surely consent to the disclosure of the requested
information (or not object to its disclosure), the litigants and the parties must comply
with the substantive notice and authorization requirements of section 456.057 when
they have the ability to comply.
IV. CONCLUSION
Because the trial court's order departs from the essential requirements of
the law by failing to comply with section 456.057(7), we grant the petition and quash the
order on review to the extent it requires Dr. Paylan to respond to interrogatory number
8.
Petition granted; order quashed.
SILBERMAN and CRENSHAW, JJ., Concur.
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