H.J.M. v. B.R.C.

603 So. 2d 1331, 1992 Fla. App. LEXIS 8914
CourtDistrict Court of Appeal of Florida
DecidedAugust 12, 1992
DocketNo. 91-3873
StatusPublished
Cited by10 cases

This text of 603 So. 2d 1331 (H.J.M. v. B.R.C.) 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
H.J.M. v. B.R.C., 603 So. 2d 1331, 1992 Fla. App. LEXIS 8914 (Fla. Ct. App. 1992).

Opinion

ZEHMER, Judge.

H.J.M., M.D., and H.J.M., M.D., P.A., petition this court for a common law writ of certiorari to quash a discovery order entered by the circuit court in a medical malpractice case between petitioners and respondents. The order compels discovery of information relating to substance abuse treatment that Dr. M. received under the impaired practitioners program.1 We deny the requested writ because the order does not constitute a departure from the essential requirements of law.

Briefly, the material facts alleged in the petition are as follows. In 1988, Dr. M. performed surgery on B.C. In 1989, Mr. C. and his wife, R.H.C., respondents, filed a medical malpractice action against petitioners, alleging that Dr. M. committed malpractice during the 1988 operation. During a subsequent deposition, Dr. M. referred to treatment he had received at a substance abuse treatment facility under the impaired practitioners program. Upon learning this information, respondents moved for disclosure of all records regarding Dr. M.’s substance abuse treatment. Petitioners filed motions in limine requesting the court to prohibit such information from being disclosed based on statutory provisions relating to the confidentiality of that information. The trial court made an in camera inspection of the materials and issued an order ruling that good cause had been shown for disclosure of the records, that the need for and probative value of the information outweighed the possible harm of disclosure to Dr. M., and that the subject material would be disclosed only to the parties, counsel of record, and persons employed by them in preparing for trial. The court expressly recited that it had not determined whether the material would ultimately be admissible at trial.

Subsequently, respondents attempted to depose Dr. M. about his past substance abuse and to obtain information related to his treatment at two drug rehabilitation facilities. Dr. M. refused to comply, and respondents filed a motion to compel and for imposition of sanctions. At the hearing on this motion, petitioners argued that section 458.3315(6)(a), Florida Statutes (1989), protects this information from disclosure and that such information is not reasonably calculated to lead to the discovery of admissible evidence. The trial court rejected petitioners’ arguments and ordered them to provide respondents with the requested testimony and information. The petition for certiorari seeks review of this order.

Petitioners contend that the order under review violates section 458.3315(6)(a), Florida Statutes (1991). As Dr. M. was an impaired practitioner under that statute, petitioners construe this section as a broad confidentiality provision that protects from disclosure in a civil action all information obtained by an impaired practitioner consultant and the Department of Professional Regulation during treatment of an impaired practitioner. Lacking case authority directly supporting this position, petitioners cite Holly v. Auld, 450 So.2d 217 (Fla.1984), wherein the supreme court held that section 768.40(4), Florida Statutes (1977),2 [1333]*1333protects proceedings and records of medical review committees from discovery in defamation actions arising out of matters that are the subject of evaluation and review by a hospital’s credentials committee. In Cruger v. Love, 599 So.2d 111 (Fla.1992), the supreme court again gave section 766.101(5), Florida Statutes (1989),3 a broad interpretation. In that case, the question was whether this statute protected a physician’s application for staff privileges at a hospital from discovery in a medical malpractice action. Although the application was created by the physician and submitted to the hospital, rather than generated by the medical review committee or other persons submitting information to the committee, the court held the document was privileged under the statute, stating, “If the legislature intended the privilege to extend only to documents created by the board or committee, then surely that is what it would have said.” 599 So.2d at 114. Petitioners argue that the confidentiality provision contained in section 766.-101(5) is sufficiently similar to the. confidentiality provision in section 458.3315 to require this court to similarly construe the latter provision. A close analysis of these two sections, however, reveals no statutory support for petitioners’ argument.

Section 458.3315, Florida Statutes (1991), which establishes the program for the treatment of impaired practitioners, reads in pertinent part:

(6)(a) An approved treatment provider shall, upon request, disclose to the consultant all information in its possession regarding the issue of a practitioner’s impairment and his participation in the treatment program. All information obtained by the consultant and the department pursuant to this section is confidential and exempt from s. 119.07(1), subject to the provisions of this subsection and subsection (7). This exemption is subject to the Open Government Sunset Review Act in accordance with s. 119.14. Failure to provide such information to the consultant is grounds for withdrawal of approval of such program or provider.
(b) If in the opinion of the consultant, after consultation with a treatment provider, an impaired practitioner has not progressed satisfactorily in a treatment program, the consultant shall disclose to the department all information in his possession regarding the issue of a practitioner’s impairment and his participation in a treatment program. Such disclosure shall constitute a complaint pursuant to the general provisions of s. 455.225. Whenever the consultant concludes that impairment affects a practitioner’s practice and constitutes an immediate, serious danger to the public health, safety, or welfare, that conclusion shall be communicated to the secretary of the department.

Unlike the language in section 458.3315, section 766.101(5)4 at issue in Holly v. Auld and Cruger v. Love contains explicit language protecting the proceedings and records of medical review committees from discovery or introduction into evidence in civil actions against a provider of health services. The supreme court construed that language as clearly expressing the legislature’s intent to restrict discovery of hospitals’ committee proceedings. Section 458.3315, on the other hand, contains no explicit language to communicate any legislative intent to protect information disclosed in the impaired practitioners programs from discovery and use in civil litigation involving the impaired practitioner. The only intent clearly expressed in the statute is to exempt treatment information from the public records act, section 119.07, and even this protection is conditional and limited in scope. If the physician (impaired practitioner) fails to progress satisfactorily [1334]*1334with his treatment, or if there is probable cause to believe that the impaired physician and either the consultant or the treatment provider have collaborated for the purpose of representing that the practitioner is rehabilitated when he is not,5 all of the information of the practitioner’s treatment must be disclosed to the department, an event that essentially allows it to become public knowledge. In the event of the physician’s failure to progress satisfactorily, the disclosure of this information constitutes a complaint by the Department of Professional Regulation against the physician.

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Bluebook (online)
603 So. 2d 1331, 1992 Fla. App. LEXIS 8914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hjm-v-brc-fladistctapp-1992.