Third District Court of Appeal
State of Florida
Opinion filed July 20, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1902
Lower Tribunal No. 13-34634
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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 Glenn P.
Falk Sr., 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
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
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
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.”
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
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
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
4
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
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,
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
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
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
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
counsel – as long as that information was not based upon initial or subsequent
communications with counsel – are not protected by the attorney-client privilege
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.
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