Lee Memorial Health System v. Smith

56 So. 3d 808, 2011 Fla. App. LEXIS 575, 2011 WL 252316
CourtDistrict Court of Appeal of Florida
DecidedJanuary 28, 2011
DocketNo. 2D10-1887
StatusPublished

This text of 56 So. 3d 808 (Lee Memorial Health System v. Smith) 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
Lee Memorial Health System v. Smith, 56 So. 3d 808, 2011 Fla. App. LEXIS 575, 2011 WL 252316 (Fla. Ct. App. 2011).

Opinion

WALLACE, Judge.

Jeffrey Smith and Melissa Smith filed an action against Lee Memorial Health System, d/b/a HealthPark Medical Center, for alleged medical malpractice in the care and treatment of their minor child. Lee Memorial sought a protective order to prohibit the Smiths’ counsel from having communications outside the presence of Lee Memorial’s counsel with the child’s treating physicians who are employed by Lee Memorial. The circuit court entered an order denying the requested protective order, and Lee Memorial petitions for a writ of certiorari to quash the circuit court’s order. We conclude that Florida Rule of Professional Conduct 4-4.2 does not limit the Smiths’ attorneys from communicating with the child’s treating physicians despite [810]*810the treating physicians’ employment by Lee Memorial. It follows that the circuit court did not depart from the essential requirements of the law in declining to enter the requested protective order. Accordingly, we deny the petition for writ of certiorari.

I. THE FACTS AND PROCEDURAL BACKGROUND

In July 2007, the Smiths’ daughter was born prematurely in a hospital operated by Lee Memorial. The child was immediately admitted to the hospital’s Neonatal Intensive Care Unit (NICU). While in the NICU, the child received neonatal parenteral nutrition through a central venous line.

On August 31, 2009, the Smiths filed a medical malpractice action on behalf of their daughter against Lee Memorial. In their complaint, the Smiths alleged that on or about July 25, 2007, the amount of vitamins and trace elements in the nutritional solution given to their daughter was improperly calculated. The Smiths alleged that as a result of this improper calculation, their daughter received an overdose of trace elements that caused her to suffer a variety of serious, permanent injuries. The injuries alleged in the complaint included permanent neurological damage, lack of normal head growth, developmental delay, spastic quadriparetic cerebral palsy, and visual inattentiveness.

In its answer to the complaint, Lee Memorial admitted that it had fallen below the standard of care in the preparation of the nutritional solution. But Lee Memorial also denied that its failure to comply with the standard of care had caused any injury to the Smiths’ daughter. Lee Memorial also asserted eighteen affirmative defenses.

The child receives care and treatment from a pediatric neurologist and several other physicians who are employed by Lee Memorial.1 In November 2009, the Smiths moved for a protective order precluding counsel for Lee Memorial “from having ex parte communication[s] with [the child’s] current treating healthcare providers [that are] employed by Lee Memorial Health System.” On January 20, 2010, the circuit court granted the protective order sought by the Smiths. Subsequently, this court granted Lee Memorial’s petition for writ of certiorari and quashed the protective order. Lee Mem’l Health Sys. v. Smith, 40 So.3d 106 (Fla. 2d DCA 2010).

Shortly after the circuit court granted the Smiths’ requested protective order, Lee Memorial filed its own motion for protective order. Lee Memorial sought “an [o]rder prohibiting legal counsel for the [Smiths] from having ex parte communications with [the child’s] current treating healthcare providers that are employed by Lee Memorial Health System.” In support of its motion, Lee Memorial argued that rule 4-4.2 prohibited the Smiths’ counsel from communicating with any of the child’s treating physicians who are also employed by Lee Memorial without its counsel’s consent. After a hearing, the circuit court denied the motion. Lee Memorial’s petition for writ of certiorari followed.

II. THE STANDARD OF REVIEW

“In order to merit certiorari relief, a discovery order must ‘depart [] from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.’ ” Lee Mem'l [811]*811Health Sys., 40 So.3d at 107 (alteration in original) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)). The second and third parts of this test are jurisdictional:

[A] petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before this court has power to determine whether the order departs from the essential requirements of the law. If the jurisdictional prongs of the standard three-part test are not fulfilled, then the petition should be dismissed rather than denied.

Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995).

III. DISCUSSION

On the issue of irreparable harm, Lee Memorial argues that the circuit court’s “order has the effect of allowing release of unauthorized and potentially damaging statements, including in the nature of ‘eat-out-of-the-bag’ material that cannot be remedied by appeal following trial.” Lee Memorial also points to its admission of a failure to meet the applicable standard of care as a factor rendering the prejudice of unguarded communications by its employees with the Smiths’ counsel as especially acute. Finally, Lee Memorial suggests that the circuit court’s refusal to enter the protective order has frustrated Lee Memorial’s effort “to protect itself from the danger of unfair exposure to potential additional liability, which protection is embodied in Florida Rule of Professional Conduct 4-4.2.”

The Smiths do not make a persuasive response to Lee Memorial’s arguments on the issue of irreparable harm. It is difficult for this court to assess the potential prejudice to Lee Memorial — if any — that may result if it is unable to limit and monitor all communications between its employee physicians and the Smiths’ counsel. Nevertheless, we conclude that review by certiorari is appropriate here because orders of the type under review have the potential to result in the disclosure of privileged information and an interference with the attorney-client relationship. See AlliedSignal Recovery Trust v. AlliedSignal, Inc., 934 So.2d 675, 677 (Fla. 2d DCA 2006); Estate of Stephens v. Galen Health Care, Inc., 911 So.2d 277, 279 (Fla. 2d DCA 2005); Lemieux v. Tandem Health Care of Fla., Inc., 862 So.2d 745, 747-48 (Fla. 2d DCA 2003); Hasan v. Garuar, 34 So.3d 785, 786-87 (Fla. 4th DCA 2010).

We turn now to the question of whether the circuit court’s order departs from the essential requirements of the law. Neither of the parties has directed us to any cases directly on point, and our independent research has not disclosed any. The absence of any authority on point requires an examination of the question presented in light of both the text and the rationale of rule 4-4.2.

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Bluebook (online)
56 So. 3d 808, 2011 Fla. App. LEXIS 575, 2011 WL 252316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-memorial-health-system-v-smith-fladistctapp-2011.