                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED

                                                 IN THE DISTRICT COURT OF APPEAL

                                                 OF FLORIDA

                                                 SECOND DISTRICT



CHRISTINA M. PAYLAN, M.D.,         )
                                   )
           Petitioner,             )
                                   )
v.                                 )                 Case No. 2D17-2071
                                   )
TIMOTHY J. FITZGERALD, ESQ., and   )
FARMER & FITZGERALD, P.A.,         )
                                   )
           Respondents.            )
___________________________________)

Opinion filed July 14, 2017.

Petition for Writ of Certiorari to the Circuit
Court for Hillsborough County; Gregory P.
Holder, Judge.

Christina M. Paylan, pro se.

Matthew Farmer, Tampa, for Respondents.


BADALAMENTI, Judge

              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)1 unless Respondents first obtained a release from L.B. for the requested

confidential medical information. Dr. Paylan argued that Respondents should be

required to contact L.B.'s attorney or L.B. to obtain authorization for release of the

information. If they did so, she would release "whatever information she had." The trial



              1
                  Pub. L. No. 104-191, 110 Stat. 1936 (1996).
                                             -2-
court found the information requested by Respondents to be relevant to the issues in

the legal malpractice case, overruled Dr. Paylan's objection, and ordered her to respond

to the interrogatory within twenty-five days. It further provided in its order that "[t]he

records shall remain under seal and not released to anyone except counsel of record,

the parties themselves or any expert."

                             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. See Cira v. Dillinger, 903 So. 2d 367, 370-71



                                             -3-
(Fla. 2d DCA 2005). As prior counsel of record in the criminal case, Respondents have

some, but not all, of L.B.'s medical records. They also seek Dr. Paylan's disclosure of

any procedures that were scheduled to be performed on L.B. during May and June

2011—contrary to L.B.'s testimony—that required the use of Demerol. Respondents

also point out that the trial court protected L.B.'s privacy by redacting her name and by

limiting the use of the information to review by counsel of record, the parties, and their

experts. Accordingly, Respondents request that the petition be denied.

                                       III. ANALYSIS

              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. Trucap Grantor Tr. 2010-1 v. Pelt, 84 So. 3d 369, 371 (Fla. 2d DCA

2012). Orders that require disclosure of confidential medical information meet the

irreparable harm requirement for certiorari review because once such information is

improperly disclosed, the harm caused by that disclosure cannot be undone. USAA

Cas. Ins. Co. v. Callery, 66 So. 3d 315, 316 (Fla. 2d DCA 2011). We must thus

determine whether the trial court's order departs from the essential requirements of the

law.

              HIPAA only preempts state laws relating to substantive privacy rights

concerning individually identifiable health information which are less stringent than

HIPAA's privacy protections. 45 C.F.R. § 160.203(b) (2013); see also Lemieux v.

Tandem Health Care of Fla., Inc., 862 So. 2d 745, 748 n.1 (Fla. 2d DCA 2003).

Because HIPAA permits disclosure of "protected health information in the course of any



                                            -4-
judicial or administrative proceeding . . . [i]n response to an order of a court" without

notice or authorization, it appears that section 456.057(7)(a) provides greater protection

than HIPAA in this context so long as the subpoena is accompanied by an order of a

court. Compare 45 C.F.R. § 164.512(e)(1)(i) (2013), with (e)(1)(ii). Accordingly, we

must determine whether the trial court's order complies with the requirements of section

456.057.

              Section 456.057(7) provides in pertinent part as follows:

              (7)(a) Except as otherwise provided in this section and in s.
              440.13(4)(c), such records may not be furnished to, and the
              medical condition of a patient may not be discussed with,
              any person other than the patient, the patient's legal
              representative, or other health care practitioners and
              providers involved in the patient's care or treatment, except
              upon written authorization from the patient. However, such
              records may be furnished without written authorization under
              the following circumstances:

                     ....

              3. In any civil or criminal action, unless otherwise prohibited
              by law, upon the issuance of a subpoena from a court of
              competent jurisdiction and proper notice to the patient or the
              patient's legal representative by the party seeking such
              records.

(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. Graham v. Dacheikh, 991 So. 2d 932, 934 (Fla. 2d DCA 2008).

The plain language of the statute "unequivocally creates 'a broad and express privilege



                                            -5-
of confidentiality as to the medical records and the medical condition of a patient.' "

Crowley v. Lamming, 66 So. 3d 355, 358 (Fla. 2d DCA 2011) (quoting Acosta v. Richter,

671 So. 2d 149, 154 (Fla. 1996)). A trial court's order that requires production of

medical records in violation of section 456.057(7) departs from the essential

requirements of the law and causes irreparable harm. Graham, 991 So. 2d at 937; see

also Callery, 66 So. 3d at 317. Similarly, an order that requires a health care

practitioner to respond to interrogatories that will disclose confidential medical

information in violation of section 456.057(7) departs from the essential requirements of

the law. See Coopersmith v. Perrine, 91 So. 3d 246 (Fla. 4th DCA 2012).

              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



                                            -6-
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.

See Colonial Med. Specialties of S. Fla., Inc. v. United Diagnostic Labs., Inc., 674 So.

2d 923, 923 (Fla. 4th DCA 1996) ("The nature of the dispute, and the fact that

respondent may already have in its records some of this patient information, does not

negate the rights of such non-party patients to privacy and confidentiality as to their

personal information."); see also Sachs v. Innovative Healthcare, Inc., 799 So. 2d 355,

358 (Fla. 3d DCA 2001) (quoting Colonial for the foregoing proposition).

              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. See Graham, 991 So. 2d at 935-37 (recognizing that the supreme

court's decision in Amente v. Newman, 653 So. 2d 1030 (Fla. 1995), at most permitted

a court to override the requirements of section 456.057 if a party makes a showing that

compliance with the statute is impossible); see also Callery, 66 So. 3d at 317 (following



                                            -7-
Graham). In fact, their arguments suggest that they have the ability to contact L.B.

through her prior counsel to either obtain her authorization or provide her with notice.

Although it seems that L.B. will almost surely consent to the disclosure of the requested

information (or not object to its disclosure), the litigants and the parties must comply

with the substantive notice and authorization requirements of section 456.057 when

they have the ability to comply.

                                    IV. CONCLUSION

              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.




                                            -8-
