Doe v. Department of Health

948 So. 2d 803, 2006 Fla. App. LEXIS 21558, 2006 WL 3780681
CourtDistrict Court of Appeal of Florida
DecidedDecember 27, 2006
Docket2D06-1273
StatusPublished
Cited by9 cases

This text of 948 So. 2d 803 (Doe v. Department of Health) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe v. Department of Health, 948 So. 2d 803, 2006 Fla. App. LEXIS 21558, 2006 WL 3780681 (Fla. Ct. App. 2006).

Opinion

948 So.2d 803 (2006)

John DOE, M.D., Petitioner,
v.
DEPARTMENT OF HEALTH, Respondent.

No. 2D06-1273.

District Court of Appeal of Florida, Second District.

December 27, 2006.
Rehearing Denied February 27, 2007.

*804 Jon M. Pellett of Barr, Murman, Tonelli, Slother & Sleet, Tampa, for Petitioner.

Wings S. Benton, Appellate Section Head, Prosecution Services Unit, and M. Rony Francois, M.D., M.S.P.H., Ph.D., Secretary, Department of Health, Tallahassee, for Respondent.

ALTENBERND, Judge.

John Doe[1] is a physician who is the subject of a disciplinary investigation by the Department of Health. As part of its *805 investigation, the Department issued a subpoena seeking certain limited peer review records regarding Dr. Doe from a hospital where Dr. Doe had staff privileges. Dr. Doe sought to quash the subpoena, arguing the records sought were privileged and could not be provided to the Department. In this petition to review nonfinal agency action,[2] Dr. Doe seeks review of the Department's order denying his motion to quash the subpoena.

The outcome of this case turns upon the interpretation of seemingly conflicting statutes, sections 458.331(9) and 458.337(3), Florida Statutes (2005), and sections 395.0193(8) and 766.101(5), Florida Statutes (2005). When read together, however, the statutes can be reconciled to promote the legislative intent behind each statute. Accordingly, we conclude that sections 458.331(9) and 458.337(3) permit the Department to subpoena this information for the purposes of its investigation of Dr. Doe, and that the provisions of sections 395.0193(8) and 766.101(5) do not prohibit the release of the information to the Department. The limited release of information to the Department is vital to Florida's physician disciplinary process, designed to assure acceptable levels of competence among physicians; it is not the type of public disclosure in a malpractice lawsuit or other civil or administrative claim that sections 395.0193(8) and 766.101(5) are intended to address. Indeed, the release of information to the Department as permitted by section 458.337(3) maintains the broader confidential and exempt nature of the information disclosed. It permits a robust and frank disciplinary process by permitting the limited disclosure to the Department, while protecting the participants from the threat of a public disclosure of any information for use in a malpractice or other action against the physician. We thus deny Dr. Doe's petition.

Dr. Doe resigned his staff privileges at a Florida hospital in May 2005. Pursuant to section 458.337(1)(a), (2), the hospital notified the Department that Dr. Doe had voluntarily surrendered his privileges while under, or to avoid, an investigation relating to his professional competence or conduct. Our limited record does not contain a document from the hospital detailing the basis for its investigation of Dr. Doe. However, when the Department notified Dr. Doe of its investigation, it indicated that the allegations involved a possible violation of sections 456.072(1)(y) and 458.331(1)(s), Florida Statutes (2005).

On October 28, 2005, the Department informed Dr. Doe that it was investigating him based upon the hospital's report.[3] In connection with the investigation, the Department issued a subpoena to the reporting hospital which requested

a summary of the issues discussed by the Peer Review Committee (Committee) pertaining to [Dr. Doe] that concerns incidents that could constitute a violation of the Medical Practice Act and/or Osteopathic Medicine Practice Act. Identify any patient records reviewed *806 by the Committee by patient name and relevant dates or by patient file number. The identity of the members of the Committee need not be disclosed.

Dr. Doe became aware of the issuance of this subpoena and notified the hospital and the Department that he objected to the hospital releasing these records. He filed a motion to quash the subpoena with the Department, arguing primarily that the documents requested were privileged under sections 395.0193(8) and 766.101(5) and thus could not be released to the Department.[4] The Department denied the motion, and Dr. Doe filed this petition to review the Department's order. Apparently, the parties have agreed to defer compliance with or enforcement of the subpoena until this court decides this petition.[5]

The Department is entitled to issue subpoenas as part of its investigation in physician disciplinary proceedings pursuant to section 456.071, which provides:

For the purpose of any investigation or proceeding conducted by the department, the department shall have the power to administer oaths, take depositions, make inspections when authorized by statute, issue subpoenas which shall be supported by affidavit, serve subpoenas and other process, and compel the attendance of witnesses and the production of books, papers, documents, and other evidence.

In turn, there are two statutes that specifically contemplate that the Department will have access to peer review documents when conducting an investigation regarding physician discipline. Section 458.337 requires hospitals to notify the Department of adverse disciplinary actions they take against a physician.[6] Section 458.337(3) states:

Any organization taking action as set forth in this section shall, upon department subpoena, provide copies of the records concerning the action to the department. However, those records shall be used solely for the purpose of the department and the [B]oard [of Medicine] in disciplinary proceedings. The records shall otherwise be confidential and exempt from s. 119.07(1). These records shall not be subject to discovery or introduction into evidence in any administrative or civil action.

Section 458.331 entitled "Grounds for disciplinary action; action by the board and department" sets forth the grounds upon which the Department may discipline a physician. Subsection (9) provides that when the Department is investigating a *807 physician for potential discipline, it must furnish to the physician certain documents:

For purposes of this subsection, such documents include, but are not limited to . . . a report of peer review disciplinary action submitted to the department pursuant to s. 395.0193(4) or s. 458.337, providing that the investigations, proceedings, and records relating to such peer review disciplinary action shall continue to retain their privileged status even as to the licensee who is the subject of the investigation, as provided by ss. 395.0193(8) and 458.337(3). . . .

These statutes specifically contemplate that the Department will have access to the peer review records supporting the hospital's discipline of a physician, and those documents will form the initial basis for the Department's investigation of the physician. In turn, those documents will remain "privileged" for all other purposes.

There is no dispute that the information sought by the Department's subpoena is generally privileged under sections 395.0193(8) and 766.101(5).

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Cite This Page — Counsel Stack

Bluebook (online)
948 So. 2d 803, 2006 Fla. App. LEXIS 21558, 2006 WL 3780681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-department-of-health-fladistctapp-2006.