The question often arises in civil cases as to which witnesses the Plaintiff’s lawyer is prohibited from communicating with outside the presence of the Defendant’s counsel. The answer is governed by Florida Rule of Professional Conduct 4-4.2.
The Rule was put to the test in the context of a medical malpractice case in Lee Memorial Health System, d/b/a Healthpark Medical Center v. Jeffrey Smith and Melissa Smith, individually, and as Parents and Natural Guardians of Kiarra Summer Smith, a minor, 40 So.3d 106 (Fla. 2d DCA 2010). The Smiths filed a medical malpractice action on behalf of their daughter against Lee Memorial. In their complaint, they alleged that the hospital fell below the standard of care in calculating nutritional solutions. The injuries alleged in the complaint included permanent neurological damage, lack of normal head growth, and cerebral palsy.
While the suit was ongoing, the child was receiving care and treatment from a pediatric neurologist and several other physicians who were employed by Lee Memorial. The child’s lawyers tried to meet with the doctors to discuss her medical condition. Lee Memorial asked the court to prohibit the meetings. The circuit court refused, so Lee Memorial petitioned the district court of appeal to do so. It also refused, reasoning as follows:
The prohibition against communicating with members of a represented organization [like Lee Memorial] is applicable to only three categories of persons or employees: (1) those who supervise, direct, or regularly consult with the organization’s lawyer concerning the matter; (2) those who have the authority to obligate the organization with respect to the matter; or (3) those whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
The court decided that none of the child’s treating doctors fell within any of these categories.
The decision is significant because, as noted by the DCA: “It is extremely important – if not essential – for plaintiff’s counsel in a medical malpractice case to interview and consult with his or her client’s treating physicians. Such informal contacts enable plaintiff’s counsel to discover the facts, formulate legal theories, and develop strategies for the case.”
As many doctors today are employed by hospitals rather than by stand-alone operations, a defendant hospital should not be able to prevent essential information gathering due to the mere existence of a business relationship.
Other pertinent references:
H.B.A. Mgmt., Inc. v. Estate of Schwartz, 693 So.2d 541 (Fla. 1997)
Barfuss v. Diversicare Corp. of Am., 656 So.2d 486 (Fla. 2d DCA 1995)
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.