Graham v. Dacheikh

991 So. 2d 932, 2008 WL 3851844
CourtDistrict Court of Appeal of Florida
DecidedAugust 20, 2008
Docket2D07-5347
StatusPublished
Cited by9 cases

This text of 991 So. 2d 932 (Graham v. Dacheikh) 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
Graham v. Dacheikh, 991 So. 2d 932, 2008 WL 3851844 (Fla. Ct. App. 2008).

Opinion

991 So.2d 932 (2008)

Brittany A. GRAHAM and Yolanda Graham, Petitioners,
v.
Kimberly V. Brown DACHEIKH, individually, and Ali Dacheikh, Respondents.

No. 2D07-5347.

District Court of Appeal of Florida, Second District.

August 20, 2008.
Rehearing Denied October 17, 2008.

Niurka J. Fernandez of Ramey & Kampf, P.A., Tampa, for Petitioners.

Robert T. Joyce of Joyce & Reyes, P.A., Tampa, for Respondents.

ALTENBERND, Judge.

Brittany Graham and Yolanda Graham, defendants in an automobile negligence action, seek a petition for writ of certiorari to quash a discovery order. The order compels Dr. Stephen Sergay, a neurologist who performed a medical examination of the plaintiff, Kimberly V. Brown Dacheikh, pursuant to Florida Rule of Civil Procedure 1.360, to produce all "reports of examiner" that he has prepared pursuant to that rule of procedure in any other lawsuit between 2004 and 2006. Although Dr. Sergay has been authorized to remove names and identifying information from the reports that he prepared regarding other people, the reports, otherwise in *933 their entirety, are to be provided to the attorneys without prior review in camera by the trial court and without any provisions for confidentiality. It appears that these medical reports of nonparties are desired not to discover evidence relevant to prove the plaintiffs' case, but merely to give their attorneys a basis to engage in impeachment of Dr. Sergay. We conclude that when the circuit court relied upon the holding in Amente v. Newman, 653 So.2d 1030 (Fla.1995), which is a distinguishable case, and refused to obey the express language of section 456.057(7), Florida Statutes (2006), it applied the wrong law. This 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. Accordingly, we grant the petition and quash the order on review.

The underlying lawsuit in this case is an automobile negligence action filed by Kimberly and Ali Dacheikh against Brittany and Yolanda Graham. The record provided to this court in this certiorari proceeding does not detail the nature of the automobile accident or the extent of Ms. Dacheikh's injuries. In the course of discovery, however, Dr. Sergay performed a medical examination of Mrs. Dacheikh pursuant to rule 1.360.[1] The Dacheikhs obtained the examiner's report prepared by Dr. Sergay pursuant to rule 1.360(b), but they also sought extensive additional discovery directed to Dr. Sergay. The Dacheikhs served the Grahams with a "notice of taking records pick-up deposition duces tecum" which indicated they were issuing a subpoena duces tecum to Dr. Sergay that required him to produce (1) "[a] printout of any and all depositions done by Dr. Sergay for the calendar years 2004, 2005, and 2006 to the extent that such information is retrievable and/or available"; (2) "[a] list of cases wherein Dr. Sergay testified in trial (in person) for the calendar years 2004, 2005, and 2006 and the person or entity who requested his presence at trial to the extent such information is available or such a list is maintained"; and (3) "[a] copy of any written report Dr. Sergay wrote as a result of a Compulsory Medical Examination pursuant to F.R.C.P. 1.360 for the calendar years 2004, 2005, and 2006." As to request three, the Dacheikhs provided that Dr. Sergay could redact identifying information such as "the name of the patient, date of birth and/or social security number."

The Grahams filed a motion to quash this notice and any corresponding subpoena only to the extent of the information sought in request three. The motion to quash generally argued that the information sought in this request was "irrelevant, immaterial, overbroad, work product, trade secret, privileged and/or confidential in nature." The trial court specifically considered the privacy interests involved in the disclosure, denied the motion, and ordered production of the reports. The court's written order stated, "Dr. Sergay may redact any identifying information as to the person being examined," but also required "[t]he reports otherwise are to be left unadulterated." The Grahams then filed this certiorari proceeding.

In their petition for writ of certiorari, the Grahams challenge the order on a variety of bases: that the documents requested are not discoverable, relevant, or *934 admissible in the proceedings; that the request is unduly burdensome; and that the discovery invades the privacy of the nonparty patients.[2] The Dacheikhs respond, arguing that the request is appropriate in light of the Florida Supreme Court's decision in Amente, 653 So.2d 1030, which authorized the plaintiff in a medical malpractice action to obtain discovery of the medical records of nonparties who were the patients of the defendant doctor.

At this juncture, and based upon the limited scope of review permitted in a certiorari proceeding, we grant the petition solely on the ground that it departs from the essential requirements of the law in requiring the disclosure of confidential medical information of nonparties without notice to those parties as required by section 456.057(7), Florida Statutes (2006), and without adequate protections to protect the privacy rights of those nonparties under the Florida Constitution. Although we question whether the entire content of these reports should be discoverable given the limited potential relevancy of much, if not all of that content, we do not decide that issue.

The Dacheikhs argue that circuit courts are now routinely granting requests similar to the request made in this case. If so, we conclude that this discovery from expert witnesses is being authorized under an application of the wrong law. The unusual circumstances in Amente are not grounds for trial courts and litigants to routinely disobey the unequivocal requirements of section 456.057(7) when seeking discovery from expert witnesses.

Section 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 or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient." The statute provides for only limited, specific exceptions to this general rule that the patient must give written authorization before any record is released. Most notably, section 456.057(7)(a)(3) provides records may be furnished:

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.

Section 456.057 reinforces the requirements of subsection (7) in subsection (8):

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Cite This Page — Counsel Stack

Bluebook (online)
991 So. 2d 932, 2008 WL 3851844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-dacheikh-fladistctapp-2008.