Damsky & Damsky v. University of Miami and Livingstone, M.D.

Third District Court of Appeal

State of Florida

Opinion filed December 10, 2014.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-2024

Lower Tribunal No. 14-43077

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Debra Damsky and Gerald Damsky,

Petitioners,

vs.

University of Miami and Alan Livingstone, M.D.,

Respondents.

On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade

County, Stanford Blake, Judge.

The Leto Law Firm, and Justin C. Leto; Hall, Lamb and Hall, P.A., and

Matthew P. Leto, for petitioners.

Fowler White Burnett, P.A., and Marc J. Schleier and Christopher E.

Knight, for respondents.

Before SALTER, FERNANDEZ, and LOGUE, JJ.

LOGUE, J.

This petition for a writ of certiorari arises out of a lawsuit in which Debra

Damsky and Gerald Damsky are suing the University of Miami and Alan

Livingstone, M.D., for medical malpractice, which allegedly took place during a

surgery performed on Ms. Damsky at Jackson Memorial Hospital. In the course of

preparing the case for trial, the attorneys for the University made ex parte contacts

with Dr. Jamie Barkin, a gastroenterologist at Mount Sinai Medical Center who

treated Ms. Damsky for problems resulting from the surgery. The Damskys

petitioned for a writ of certiorari to “quash the portion of the Lower Court’s Order

finding that any communication between Dr. Barkin and [the University] are

privileged and that ex parte communications [by the University] with Dr. Barkin

are permissible.”

The substantive legal issue that underlies this petition involves whether Dr.

Barkin is an employee of the University. The patient confidentiality provisions of

section 456.057, Florida Statutes (2014), have been interpreted by the Florida

Supreme Court to prohibit treating physicians from engaging in communications

regarding their treatment of a patient to third parties, including attorneys, without

the authorization of the patient. Hasan v. Garvar, 108 So. 3d 570, 577 (Fla. 2012).

An exception to this rule permits a hospital to communicate with its employees

about patient care in preparing the defense of a case in which the hospital is a

defendant. Lee Mem’l Health Sys. v. Smith, 40 So. 3d 106, 109 (Fla. 2d DCA

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2010); Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So. 2d 277,

282 (Fla. 2d DCA 2005). The parties disagree whether this case comes within the

ambit of this exception because they cannot agree whether Dr. Barkin, who works

at Mount Sinai pursuant to an affiliation agreement between the University and

Mount Sinai, is an employee of the University. The trial court ultimately

determined that Dr. Barkin was an employee of the University.

Before reaching the substance of this issue, however, we must first

determine if we have jurisdiction. Orders governing discovery are not one of the

interlocutory orders that can be appealed as a matter of right. Fla. R. App. P. 9.130.

Interlocutory orders that are not appealable as a matter of right, however, may be

reviewed by a petition for a writ of certiorari. But a petition for writ of certiorari is

not simply an alternative method to obtain an interlocutory appeal when the rules

do not provide one. In fact, a petition for writ of certiorari is not an appeal. It is an

original action seeking an extraordinary writ. It differs from an appeal in many

ways. Among other things, the standard of review governing a petition for

certiorari is much higher than the standard governing an appeal of right.

To prevail in its petition for a writ of certiorari, a party must demonstrate

that the contested order constitutes (1) a departure from the essential requirements

of the law, (2) resulting in material injury for the remainder of the case, (3) that

cannot be corrected on post-judgment appeal. Sucart v. Office of the Comm’r, 129

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So. 3d 1112, 1114 (Fla. 3d DCA 2013) (citation omitted). These last two elements

are sometimes referred to as irreparable harm. Nader v. Fla. Dep’t of Highway

Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012).

This higher standard applies because a more relaxed standard would allow

“piecemeal review of non-final trial court orders [that] will impede the orderly

administration of justice and serve only to delay and harass.” Bd. of Trustees of

Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454

(Fla. 2012) (quotations and citations omitted). Under this high standard, few non-

final orders qualify for the use of a writ of certiorari. Citizens Property Ins. Corp.

v. San Perdido Ass’n, Inc., 104 So. 3d 344, 351-52 (Fla. 2012).

Under the high standard for issuance of certiorari, the first and necessary

condition is demonstration of irreparable harm. Mere legal error without

irreparable harm, even a departure from the essential requirements of law, while

appealable at the end of the case, is not a basis for the issuance of a writ of

certiorari. Unless the petitioner establishes irreparable harm, the court must dismiss

the petition for lack of jurisdiction. In this regard, the Florida Supreme Court has

repeatedly emphasized that “[a] finding that the petitioning party has ‘suffered an

irreparable harm that cannot be remedied on direct appeal’ is a ‘condition

precedent to invoking a district court’s certiorari jurisdiction.’” Bd. of Trustees, 99

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So. 3d at 454-55 (quoting Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla.

1998)).

Turning to the order we are being asked to review, it is clear it does not

inflict an “irreparable harm that cannot be remedied on direct appeal.” First, the

order prevents the Damskys from taking discovery to learn the contents of the

communications between the University and Dr. Barkin. But an order that denies

discovery normally does not rise to the level of irreparable harm because it can be

readily remedied on appeal; therefore, “orders having the effect of denying

discovery are almost invariably not reviewable by certiorari because of the absence

of irreparable harm.” Neeley v. CW Roberts Contracting, Inc., 948 So. 2d 844 (Fla.

1st DCA 2007); see also Esman v. Bd. of Regents, 425 So. 2d 156, 157 (Fla. 1st

DCA 1983) (“[T]he trial court’s interlocutory ruling denying discovery does not

furnish the occasion for this court’s intervention through the use of the

extraordinary writ.”).

Second, the Damskys contend that the order allows the University to engage

in future ex parte communications with Dr. Barkin. Such an order may be

reviewable by certiorari. See Lemieux v. Tandem Health Care of Fla., Inc., 862 So.

2d 745, 747 (Fla. 2d DCA 2003) (granting certiorari review of an order that

permitted a rehabilitation clinic to conduct ex parte discussions with a patient’s

treating physicians); Melody v. State Dep’t of Health & Rehabilitative Servs., 706

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So. 2d 115, 116 (Fla. 4th DCA 1998) (holding certiorari review was appropriate to

review an order that required a minor, in the minor’s action against the Department

of Health and Rehabilitative Services, “to execute a release to allow [the

Department] to talk to her mental health care providers without her counsel being

present, or alternatively for her treating doctors to speak to counsel for [the

Department] ex parte”).

But our examination of the order reveals that it does not authorize

prospective ex parte communications. Although the order finds that Dr. Barkin is

an employee of the University and therefore suggests that the trial court may

authorize such communications, the order contains language that expressly

prohibits such communications until further order of the court. At oral argument,

the University acknowledged that under the existing trial court orders, the

University and its lawyers cannot communicate with Dr. Barkin about his

treatment of Ms. Damsky or matters relating to the underlying lawsuit unless and

until they obtain an order from the court permitting such communication. The

petition therefore does not demonstrate irreparable harm.

Petition for certiorari dismissed.

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