Opinion
Case No. 1D08-3923.
Opinion filed March 13, 2009.
Certiorari — Original Jurisdiction.
James J. Taylor, Jr. of Taylor Taylor, P. A., Keystone Heights, for Petitioner.
Susan L. Kelsey, Kelsey Appellate Law Firm, P.A., Tallahassee, for Respondent.
Alan E. McMichael, The McMichael Law Firm, PL, Gainesville, for Amicus Curiae The Florida Justice Association.
Patricia Dannemann, the plaintiff in a suit which alleges that employees of Shands Teaching Hospital and Clinics, Inc. (Shands) negligently caused the death of her husband, seeks certiorari review of an order denying her motion to prohibit pre-deposition conferences between nonparty physicians employed by the University of Florida, also a nonparty, and the counsel hired by Shands' insurer to represent these physicians at their depositions. The order would allow the physician witnesses to discuss the decedent's medical condition. Because this case is controlled by our previous decision in Harmon v. Roper, 945 So. 2d 534 (Fla. 1st DCA 2006), and the Florida Supreme Court's decision in Acosta v. Richter, 671 So. 2d 149 (Fla. 1996), we grant the petition and quash the trial court's order.
Harmon also involved a suit against Shands for alleged medical malpractice causing the death of Harmon's son. This court held in Harmon that the clear, unambiguous language of the patient confidentiality statute, section 456.057(6), Florida Statutes (2005), presently numbered as subsection (8), prohibits any nonparty physician from disclosing the decedent's medical condition and history to the counsel hired by the defendant's insurer to represent the physician at a deposition. We explained that there are only four circumstances that would allow a health care practitioner or provider to discuss a patient's medical condition and treatment, Harmon, 945 So. 2d at 536, and none of those circumstances are present in this case. The legislature created the physician-patient privilege by statute "where none existed before, and [provided] an explicit but limited scheme for the disclosure of personal medical information." Acosta, 671 So. 2d at 154. Though respondent, Shands, believes the statute is ill-conceived, that is a matter for the legislature to address.
Shands raises the same constitutional issues that were raised inHannon. Specifically, Shands contends that our application of section 456.057 in Hannon violates the physicians' constitutional right to counsel protected by the free speech clause of the First Amendment and their rights under the due process clause of the Fourteenth Amendment. Amend. I, U.S. Const.; Amend. XIV § 1, U.S. Const. Shands urges us to address these issues, arguing that they were unresolved in Harmon. Certainly, "no decision is authority on any question not raised and considered. . . ." State ex rel. Helseth v. Du Bose, 99 Fla. 812, 128 So. 4, 6 (1930). Even though this court in Harmon did not discuss the constitutional issues raised there, the court's silence supports the necessary conclusion that those issues were considered and rejected. InHarmon, the court granted relief based upon section 456.057(6), which it could not have done had it been persuaded the statute was constitutionally infirm. We are bound by Harmon under the doctrine of stare decisis. N. Fla. Women's Health and Counseling Servs., Inc. v. State, 866 So. 2d 612, 637 (Fla. 2003) ("The doctrine of stare decisis, or the obligation of the court to abide by its own precedent, is grounded on the need for stability in the law and has been a fundamental tenet of Anglo-American jurisprudence for centuries."). Further, we note that in Acosta the Supreme Court rejected the argument that the limitations on disclosure in section 455.241(2), Florida Statutes (1993), are "somehow violative of a defendant physician's First Amendment rights to free speech." Acosta, 671 So. 2d at 156.
The petition for writ of certiorari is GRANTED and the trial court's order is QUASHED.
PADOVANO AND CLARK, JJ., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED