Hasan v. Garvar-Protecting Patients’ Rights or Ripping Rights Away From Physicians?

Author:  Amy L. Miles

On December 20th, the Supreme Court of Florida released an unprecedented, broadly-sweeping opinion that appears to strip from non-defendant physicians the right to consult with an attorney when they are called upon to give testimony on their treatment of a plaintiff/patient. In the opinion authored by Justice Lewis, Hasan v. Garvar, Case No. SC10-1361 (Dec. 20, 2012), the Court relied on Florida’s physician-patient confidentiality statute to hold that a patient’s privacy trumped the physician’s right to consult with an attorney about the circumstances surrounding the physician’s treatment of the patient even if the consultation was limited to avoid disclosing any confidential patient information.

In Hasan, a patient sued his dentist for failure to diagnose his dental condition.  After seeing his dentist, the patient had visited an oral and maxillofacial surgeon, who treated the patient.  The medical malpractice carrier for the dentist and the surgeon was the same insurance company.  During the course of the suit against the dentist the patient sought to take the surgeon’s deposition.  The surgeon had not been named as a defendant.  Accordingly, the insurer retained an attorney to consult with the surgeon for an ex-parte, pre-deposition conference.  The attorney was not the same attorney, or even from the same law firm, that had been retained to defend the dentist.

Ruling on the patient’s challenge to that pre-deposition conference, the trial court placed limitations on the consultation that prevented the surgeon from disclosing confidential patient information, but otherwise permitted the surgeon to meet with the attorney.   The Fourth District Court of Appeal  affirmed that order.  Quashing the Fourth District opinion, the Supreme Court held that “the physician-patient confidentiality statute,” section 456.057, Florida Statutes (2009), “prohibits a nonparty treating physician from having an ex parte meeting with an attorney selected and provided by the defendant’s insurance company.”  The Court determined that the meeting is prohibited “whether or not they intend to discuss privileged or non-privileged matters without measures to absolutely protect the patient and the privilege.”      cet5007

Based on prior cases that prevented only the defendant’s counsel from ex parte meetings with a non-party physician, the Hasan opinion seems to broaden that prohibition to any counsel at all.  The Supreme Court stated that the legislature’s intent in enacting section 456.057 was to “safeguard privileged medical information and to strictly control the dissemination of a Florida patient’s medical information.”

The Hasan opinion left the actual extent to which a nonparty physician may consult with any counsel prior to a deposition unclear.  Under the facts in Hasan, the surgeon’s counsel was retained by the defendant’s insurer because both physicians were insured by the same company.   Thus, the court found that even though the counsel the insurer selected to consult with the surgeon was not defense counsel, “counsel provided by the defendant’s insurer also presents the same compromised interest as other outsiders, and, therefore, is barred from meeting with a nonparty treating physician.”  The Court’s holding expressly prohibited only “ex parte meetings between a patient’s nonparty treating physician and counsel provided by the defendant’s insurance company.”  Nevertheless, the Court seemed to prohibit a physician’s consultation with any counsel by its statement that “ex parte meetings between a nonparty treating physician and outsiders to the patient-health care provider relationship are not permitted.”  (Emphasis added).

In prohibiting ex parte meetings with counsel provided by the insurer, the Court also stated that privileged medical information is “not limited to information made ‘in the course of the care and treatment.’”   Therefore, even if the meeting was limited to issues outside of the actual patient care, the Court prohibited the consultation.   The Court was concerned that the insurer’s provision of counsel to the surgeon would foster “an environment conducive to inadvertent disclosure of privileged information.”

Of course, under the statute, a nonparty physician is not prohibited from consulting with counsel when he or she “reasonably expects to be named as a defendant.”  Under the holding in Hasan, future court decisions may be required to define what a reasonable expectation of being named a defendant would be in order to clarify nonparty physicians’ right to consult with counsel before giving deposition testimony.

The Supreme Court rejected arguments that its interpretation of the statute infringed on a physician’s First Amendment right to free speech or right to counsel, finding that if the physician becomes a party to a medical negligence legal action, he or she may discuss confidential patient information with an attorney.

In his dissent, in which Justice Canady concurred,  Justice Polston characterized the majority opinion as “so breathtakingly broad that it even forbids the nonparty physician from consulting a lawyer that she may choose to hire independently.”  Justice Polston opined that “the majority wrongfully prohibits a physician from consulting with her own lawyers, paid for by her insurance, by assuming that ethical violations will occur.”  He stated, “I am unaware of any other circumstance where this Court has prohibited someone from consulting a lawyer for legal advice.”  “There is no reason in this case to question whether the physician and her lawyer would do anything other than abide by the court order and their respective ethical obligations.”

Pennsylvania Supreme Court Revisits Discarded Defense For Doctors

Author: Marc L. Penchansky

A physician-defendant in a Pennsylvania medical malpractice case was previously entitled to a jury instruction regarding the “error in judgment” defense.  A jury was instructed that if a physician used his best judgment, exercised reasonable care and had the requisite knowledge or ability, the physician is not negligent even if complications occurred.  In 2009, the Superior Court of Pennsylvania ruled that the “’error of judgment’ instruction . . . does not inform jurors on the applicable standard of care and instead tends only to confuse, rather than clarify, the issues the jury must decide . . . .”   See Pringle v. Rapaport, 980 A.2d. 159 (Pa. Super 2009).[1]  The Supreme Court of Pennsylvania refused to hear the appeal in Pringle. 

In 2011, the Superior Court applied its holding in Pringle retroactively.  See Passarello v. Grumbine, M.D., 29 A.3d 1158, 2011 PA Super 199 (2001).[2]   Last Friday, the Supreme Court of Pennsylvania agreed to hear the appeal in Passarello.  The Supreme Court specifically agreed to determine the vitality of the error in judgment instruction[3] and if the prohibition survives, whether it should be applied retroactively.[4] 


Soon after, the Superior Court reached its decision in Passarello, McCumber Daniels attorney, John McGreevey, authored an article on the “error in judgment” instruction and the implications of Pringle and Passarello  His article, Don’t Take Away My Error in Judgment, can be found here.[5]



Pinning Physician Negligence on Hospitals in Florida Still as Unclear as Ever

Author: Derek M. Daniels

In the recent case of Newbold-Ferguson v. AMISUB, Inc. d/b/a North Ridge Medical Center, 2012 WL 555395 (Fla. 4th DCA 2012), the Fourth District Court of Appeals chimed in yet again on the issue of holding hospitals responsible for physician negligence under the guise of the doctrine of non-delegable duty. For some reason, the 4th DCA seems particularly interested in this issue, and their latest iteration of strained logic effectively does nothing more than stir already muddied water.

The patient went to the hospital for back surgery and died the next day from cardiac arrhythmia. Although not clear from the opinion, it appears the crux of the claim was the emergency room physician failing to timely respond to the code. As to the hospital, the plaintiff alleged directly liability for the ER physician’s negligence based on a “non-delegable duty to supervise…so that competent and careful medical personnel are provided….” On this claim, the trial court determined that the non-delegable duty as alleged did not exist and in allowing plaintiff to amend to allege a viable claim against the hospital instructed counsel that the issue was “the non-delegable duty to diligently determine that competent physicians are afforded house privileges or staff privileges.” In what sounds like a bizarre ruling, the trial court dismissed plaintiff’s next attempt at alleging a claim against the hospital but permitted the case to go to trial under the prior complaint with a ruling that all references to the emergency room physician be redacted. At trial, plaintiff was precluded from introducing evidence that the ER doctor deviated from the standard of care, and the jury returned a verdict in favor of the hospital.
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