Mobley and Sanders v. Homestead Hospital, Inc. , 2016 Fla. App. LEXIS 11076 ( 2016 )


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  •         Third District Court of Appeal
    State of Florida
    Opinion filed July 20, 2016.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D15-1902
    Lower Tribunal No. 13-34634
    ________________
    Misty Mobley, etc., et al.,
    Petitioners,
    vs.
    Homestead Hospital, Inc., et al.,
    Respondents.
    On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
    County, Thomas J. Rebull, Judge.
    Diez-Arguelles & Tejedor, P.A. and Jack T. Cook and Maria D. Tejedor
    (Orlando); Creed & Gowdy, P.A. and Jessie L. Harrell and Bryan S. Gowdy
    (Jacksonville), for petitioners.
    Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A. and Glen Falk,
    Scott E. Solomon, and Jordan M. Bieber, for respondent Homestead Hospital, Inc.
    Before SUAREZ, C.J., and WELLS and SHEPHERD, JJ.
    SUAREZ, C.J.
    Misty Mobley filed a lawsuit against Homestead Hospital in 2013 alleging
    that her son Tavarion’s disabilities are due either to medical malpractice during her
    pregnancy or to medical malpractice during her son’s 2009 birth. The Petitioners
    seek a writ of certiorari to quash an order below compelling Mobley to answer
    certain questions objected to at her deposition regarding her medical history and
    her reasons for seeking legal counsel prior to filing her medical malpractice
    lawsuit. We grant the petition in part, and deny in part.
    Homestead Hospital, Inc. [the “Hospital”] sought discovery as to when
    Mobley first became aware of the possibility that her son’s disabilities may be
    related to medical malpractice that allegedly occurred during her pregnancy and/or
    his birth in 2009. The Hospital sought the information in order to determine
    whether the lawsuit was barred by the statute of limitation for medical malpractice
    claims.1 The Hospital indicated that in 2010, a law firm acting on Mobley’s behalf
    faxed a request to the Hospital for her son’s medical records, in which Mobley
    indicated she sought the records to be used in connection with litigation as a
    plaintiff. In 2011, another attorney acting on Mobley’s behalf filed a petition for
    determination of compensability with the State of Florida for birth-related
    neurological injuries to her son.2 The NICA filing was made more than two years
    1 The statute of limitation for medical malpractice is two years “from the time the
    incident giving rise to the action occurred or within 2 years from the time the
    incident is discovered, or should have been discovered with the exercise of due
    diligence.” § 95.11(4)(b), Fla. Stat. (2013). See also Tanner v. Hartog, 
    618 So. 2d 177
     (Fla. 1993) (holding mere knowledge of an injury is not enough to trigger the
    running of the statute of limitations; rather, a plaintiff must also have “knowledge
    that there is a reasonable possibility that the injury was caused by medical
    malpractice.”).
    2
    after the birth, and several months prior to Mobley’s request to extend the statute
    of limitation in the underlying suit against the Hospital.
    At Mobley’s deposition, the Hospital asked what her reasons were for
    seeking legal counsel in 2010 and 2011.3 Mobley’s counsel objected on the basis
    of work-product and attorney-client privilege, and instructed her not to answer.
    The Hospital filed a motion to compel her to answer, and after a hearing the trial
    court granted the Hospital’s motion to compel Mobley to answer “all question
    related to when she first sought legal counsel, the names of the attorneys with
    whom she consulted, and the reasons why she first sought legal counsel and any
    subsequent counsel.”
    At the same deposition, the Hospital also asked Mobley questions about any
    prior pregnancies and terminations she had from 1990 up to the date of Tavarion’s
    2  The Florida Birth-Related Neurological Injury Compensation Association
    (NICA) was created by the Florida Legislature in 1988. NICA is a statutory
    organization that manages the Florida Birth Related Neurological Injury
    Compensation Plan ("Plan") used to pay for the care of infants born with certain
    neurological injuries. §766.301(2), Fla. Stat.; Fla. Birth-Related Neurological
    Injury Comp. Ass’n v. McKaughan, 
    668 So. 2d 974
    , 978 (Fla. 1996).
    3   The questions that the Petitioners claim invade attorney-client privilege are :
    “Why did you retain Mr. Gilbert?”
    “Why did you file a NICA petition?”
    “And why did you go see Mr. Gilbert?”
    “Why did you seek counsel in May of 2010?”
    “Isn’t it true that you retained the Silva firm for the purposes of
    pursuing a medical malpractice action?”
    “And did you retain the Silva & Silva law firm for the purpose
    of obtaining medical records to review, whether or not there was basis
    for a malpractice action against Homestead Hospital in May of 2010?”
    3
    birth. Mobley’s attorney objected on the basis of relevancy and privacy and
    instructed her not to answer. The Hospital asserted that it needed the termination
    information as prior terminations may be relevant to the cause of medical
    complications in subsequent pregnancies. The Hospital also sought to clarify
    certain discrepancies between Mobley’s testimony and the medical records of her
    prior pregnancies and terminations. The trial court ordered Mobley to answer
    questions related to the terminations she had prior to Tavarion’s birth; the court’s
    order, however, specified that the information be kept confidential and only used
    for purposes of the instant litigation.
    Privacy issue. The Petitioner argues that the facts of any prior pregnancies
    and terminations are not relevant to the instant litigation, and that the Hospital’s
    questions about her medical history implicate constitutional privacy issues. By
    consenting to disclose her medical records, however, the Petitioner has voluntarily
    made those medical events discoverable. The Petitioner did not object on privacy
    grounds to the Hospital’s inquiry about these medical facts at the hearing on the
    motion to compel. The Hospital stipulated below it would ask only where and
    when the terminations occurred, and the trial court correctly limited the Hospital’s
    questions to that information.      The trial court’s order also specifies that the
    information shall be kept confidential and used only for the purposes of the instant
    litigation, and that the names of the fathers shall not be disclosed. Where the
    Petitioner voluntarily disclosed these
    4
    facts in her medical records, she has no expectation of privacy as to those limited
    facts related to prior pregnancy and termination events. We therefore deny that
    part of the petition for writ of certiorari which seeks to quash the trial court’s order
    permitting the questions related to the time and location of any prior termination of
    a pregnancy by Petitioner. However, we affirm that portion of the order which
    limits the scope of such inquiry and restricts the use of the information to preserve
    confidentiality. We find that the order did not depart from the essential
    requirements of law in that respect.
    Attorney-Client privilege issue.         At her deposition, the Appellant testified
    that it was not until 2012 she first believed her son’s medical problems may be due
    to possible medical malpractice. To address its statute of limitation concerns, the
    Hospital sought to determine when and why the Appellant thought about seeking
    legal counsel, when she first retained legal counsel and the name of the attorney,
    why she filed a NICA petition, and when and why she retained the Silva and Silva
    law firm.4 The Appellant objected based on attorney-client privilege, and the
    Hospital moved to compel her to answer. At the hearing on the motion to compel,
    the trial court stated that these facts were not privileged and ordered Mobley to
    answer “all questions related to . . . when she first sought legal counsel, the names
    4 The record indicated that the law firm of Silva & Silva had requested Mobley’s
    medical records from the Hospital in May 2010, and that attorney Gilbert had filed
    a NICA petition on Mobley’s behalf in October 2011.
    5
    of the attorneys with whom she consulted and the reasons why she first sought
    legal counsel and any subsequent counsel.”
    The contents of confidential communications between the attorney and client
    are privileged and not discoverable, whereas dates, places, and names of consulted
    counsel are generally not privileged and are discoverable.5 See § 90.502, Fla. Stat.
    (2016); Upjohn Co. v. United States, 
    449 U.S. 383
     (1981). That part of the order,
    however, requiring the Petitioner to answer “all questions related to . . . the
    reasons why she first sought out legal counsel and any subsequent counsel,” is
    overly broad and has the potential to stray into privileged and confidential
    communications. We agree that, “[w]hile [appellant] can be required to answer
    factual questions about what she learned at various points in time concerning the
    nature and potential causes of her [child’s] condition from sources other than the
    attorneys she consulted, she cannot be forced to answer questions that would
    require her to reveal the contents of advice or information she received from the
    attorneys.” Coffey-Garcia v. South Miami Hospital, Inc., No. 3D15-1966 (Fla. 3d
    DCA June 22, 2016).       On the other hand, questions carefully constructed to
    determine Mobley’s intentions, thoughts, and general motivations for seeking legal
    counsel – as long as that information was not based upon initial or subsequent
    communications with counsel – are not protected by the attorney-client privilege
    5 As indicated in the Hospital’s Answer Brief, Mobley does not challenge those
    portions of the order that require her to answer when she first sought counsel and
    the names of those attorneys.
    6
    and are discoverable. See Boyles v. Mid-Florida Television Corp., 
    431 So. 2d 627
    ,
    639 (Fla. 5th DCA 1983), app’d, 
    467 So. 2d 282
     (Fla. 1985) (holding the attorney-
    client privilege does not extend beyond the substance of the client's confidential
    communications to the attorney).
    We therefore grant the petition for writ of certiorari solely to quash that
    portion of the order requiring the Petitioner to answer “all questions related to . . .
    the reasons why she first sought out legal counsel and any subsequent counsel”
    solely because it is too broad and could be understood to include information
    received by Mobley from one of her attorneys. Certainly, Mobley can be asked
    and required to answer factual questions about what she learned at various points
    in time concerning the nature and potential causes of Tavarion’s condition from
    sources other than the attorneys she consulted. She can also be required to respond
    to questions concerning her intentions, thoughts and reasons for seeking legal
    counsel so long as those intentions, thoughts and reasons were not informed by
    communications with counsel.
    Petition granted in part, denied in part.
    7
    

Document Info

Docket Number: 3D15-1902

Citation Numbers: 202 So. 3d 868, 2016 Fla. App. LEXIS 11076

Judges: Suarez, Wells, Shepherd

Filed Date: 7/20/2016

Precedential Status: Precedential

Modified Date: 10/19/2024