Paylan v. Fitzgerald

Paylan v. Fitzgerald

Opinion

 [*432]  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  [*433]  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 [**2]  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 court found the information requested by Respondents [**3]  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

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