South Florida Hospital News
Monday December 11, 2017
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February 2013 - Volume 9 - Issue 8

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A Physician’s Right to Counsel

Typically in medical malpractice lawsuits, a non-party treating physician is sought to be deposed by either the plaintiff’s attorney bringing the action, or the attorney for the defendant healthcare provider. Frequently in these instances, lawyers for either the plaintiff or the defendant healthcare provider seek to obtain not only information relating to the care and treatment of the subject patient/plaintiff, but also seek to acquire expert testimony in the form of either standard of care and/or causation opinions. On occasion, a non-party treating physician’s testimony is used to develop a claim for medical negligence against that physician by either plaintiff’s counsel or the defendant healthcare provider’s counsel. It has been the practice for many physicians to consult his/her insurance company when he/she is requested to give a deposition in the medical negligence action, and the insurance company often will hire an attorney to represent the non-party physician at his/her deposition, to insure that the doctor’s rights are protected. The prevailing practice has been that privileged matters such as the actual care and treatment of the patient would not be discussed in such a setting, given the provisions of the Patient Confidentiality Statute, Florida Statute §456.057(8).
 
However, the Supreme Court of Florida has now issued an opinion dated December 20, 2012 in Hasan v. Garver, DMD, et al. which has the potential to totally change the landscape in that regard. In a split decision, the majority held that pursuant to the Patient Confidentiality Statute, a non-party physician cannot discuss any aspects of the case or his testimony with an attorney prior to his deposition, even though such discussions do not involve patient privileged matters, such as the actual care and treatment rendered by that physician to that specific patient. The Court held that an ex-parte meeting between a non-party physician and their chosen attorney violates the Patient Confidentiality Statute, regardless of whether the attorney and the physician discuss non-privileged matters. The holding in this case goes so far to even suggest that a doctor cannot retain an attorney to discuss the allegations in the lawsuit in which he is going to be deposed, even though the allegations in the lawsuit are a matter of public record for anyone to see and discuss. In a strongly worded dissent, Justice Polston noted that the majority’s holding went far beyond the confidentiality privileges under Florida Statute §456.057, and noted that the opinion was so broad that it even prohibited a non-party physician from consulting a lawyer that had been hired independently, separate from the physician’s insurance company. The dissent appropriately noted that physicians who are not a party to the litigation may be concerned with discovery depositions and investigative techniques used by lawyers, and may wish to seek legal counsel to understand the legal process which they are going to be involved with at their deposition.
 
Those in the medical malpractice defense bar have been discussing this opinion and the potential implications of same. We believe that physicians who are requested to give depositions in medical negligence actions, who are not parties to the actual litigation, should explore their legal options, and consult with either their insurance carriers or employers regarding same to determine if other legal measures can be taken to protect that physician’s interest. At this juncture, we are developing some protocols by which we can best defend physicians’ interests in light of the Supreme Court’s recent holding in Hasan v. Garver, DMD, et al.

Michael A. Petruccelli, Fann & Petruccelli, P.A., can be reached at mpetruccelli@fplawyers.com or (954) 771-4118 or visit www.fplawyers.com.

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