Dr. Christina Paylan seeks certiorari review of an interlocutory discovery order which directs her, in part, to produce confidential medical information to Respondents, Timothy Fitzgerald and Farmer & Fitzgerald, P.A. Because the trial court's order departs from the essential requirements of the law and causes irreparable harm by failing to comply with the substantive notice and authorization requirements set forth in section 456.057(7)(a), Florida Statutes (2016), we grant the petition and quash the order on review with respect to interrogatory number 8.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the underlying litigation, Dr. Paylan filed a complaint against Respondents, alleging legal malpractice, among other things, with respect to their representation of her in several criminal cases. In case number 11-CF-8930 the State charged Dr. Paylan with two counts of obtaining a controlled substance by fraud and one count of possession of a controlled substance, Demerol. Dr. Paylan allegedly wrote three unlawful prescriptions for Demerol to patient, "L.B." L.B. denied that she authorized Dr. Paylan to obtain a controlled substance in her name or that she had any medical procedure scheduled with Dr. Paylan that required the use of Demerol. Ultimately, those criminal charges were dismissed.
In the context of the legal malpractice litigation, Respondents served Dr. Paylan with interrogatories. In interrogatory number 8, they asked Dr. Paylan to "[l]ist all the procedures and dates the procedures were performed or were scheduled to be performed that required [her] to use Demerol on patient LB between May 20, 2011 and June 30, 2011." Dr. Paylan objected to the interrogatory, arguing that responding to it would cause her to violate the Health Insurance Portability and Accountability Act of 1996 (HIPAA)
II. THE ARGUMENTS ON REVIEW
In her petition, Dr. Paylan argues that the trial court departed from the essential requirements of the law and caused irreparable harm by ordering her to release L.B.'s confidential medical information without (1) requiring an authorization for release or (2) providing L.B. with notice and an opportunity to be heard before the information was disclosed. In addition to citing HIPAA, she cites to section 456.057 in support of her position. She requests that we quash the trial court's order with respect to interrogatory number 8.
Respondents point out that L.B. was interviewed and deposed on multiple occasions in the context of both the criminal case and a medical license proceeding against Dr. Paylan. In every instance, L.B. denied that she had any medical treatment scheduled with Dr. Paylan during June 2011 that would have required the use of Demerol. Furthermore, in a November 18, 2011, e-mail to Mr. Fitzgerald, Dr. Paylan stated that L.B. had consented to the release of her medical records.
Respondents argue that the information they sought in interrogatory number 8 is relevant to their defense of the legal malpractice case because Dr. Paylan must allege and prove that she is actually innocent of the criminal charges from which her legal malpractice claim originated.
To be entitled to certiorari relief with respect to an interlocutory order, a petitioner must establish that the order departs from the essential requirements of the law resulting in material injury for the remainder of the case that cannot be remedied on direct appeal.
HIPAA only preempts state laws relating to substantive privacy rights concerning individually identifiable health information which are
(Emphasis added.) Thus, as we have previously explained, "[s]ection 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 . . . except upon written authorization of the patient'" with certain, limited exceptions, including the issuance of a subpoena with notice to the patient.
Although Respondents do not dispute that they did not provide L.B. with notice of their intent to obtain the disputed information from Dr. Paylan, they argue that the trial court properly directed Dr. Paylan to respond with L.B.'s confidential medical information based upon L.B.'s alleged prior authorization and prior disclosure of the information in the context of other litigation. There are several problems with this argument.
First, the only evidence that L.B. authorized the release of the requested information is in an e-mail sent from Dr. Paylan to Mr. Fitzgerald in November 2011, in which Dr. Paylan stated that "B" and "M," not L.B., had authorized the release of their medical records. Respondents have not provided an actual written authorization from L.B., and the e-mail reference does not clearly demonstrate that authorization was obtained from L.B. as opposed to some other patient, like "B" or "M." Moreover, nothing in the e-mail demonstrates the scope of the authorization. The e-mail is from 2011, and nothing in the e-mail or the record reflects the time period for which any such authorization would be in effect. The e-mail reference to an authorization was made more than six years before Respondents sought confidential medical information from Dr. Paylan for L.B. in February 2017.
Next, Respondents' references to L.B.'s prior testimony and interviews have similar problems. All of those prior disclosures were made between 2011 and 2013 in the context of other cases, not the underlying legal malpractice proceeding. Moreover, the information that was disclosed was within the control of L.B. Although the information requested in this matter relates to the subject of L.B.'s prior disclosures, Respondents are seeking L.B.'s confidential medical information that is within Dr. Paylan's control and information that refutes L.B.'s prior disclosures. In that sense, Respondents are not seeking the same information previously obtained from L.B.
In addition, Respondents do not argue that they cannot comply with the statute by obtaining a written authorization from L.B. or by providing her with the requisite notice.
Because the trial court's order departs from the essential requirements of the law by failing to comply with section 456.057(7), we grant the petition and quash the order on review to the extent it requires Dr. Paylan to respond to interrogatory number 8.
Petition granted; order quashed.
SILBERMAN and CRENSHAW, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.