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Hospital lawyer allowed to meet in secret with patient’s doctor

Third District Court of Appeal in Florida declines to review trial court order finding university’s ex parte contact with treating doctor privileged. The plaintiffs filed a medical malpractice suit against the University of Miami and one other party, alleging negligence during a surgery at Jackson Memorial Hospital. The University engaged in ex parte contact with a non-defendant doctor at Mt. Sinai Hospital who had treated the patient after the incident. The plaintiffs sought discovery regarding the ex parte contact, and the trial court denied it, finding that the treating doctor, who worked at Mt. Sinai “pursuant to an affiliation agreement between the University and Mt. Sinai,” was an employee of the University. Therefore, the trial court held, the University’s ex parte communications, made in preparation for defending itself in the medical malpractice case, were privileged. The Third District Court of Appeal denied the plaintiffs’ petition for writ of certiorari on the grounds that the order did not cause any irreparable harm. As the Third District explained, orders denying discovery are almost never reviewable by certiorari because they can be remedied on direct appeal. If the order had permitted future ex parte contact, it might have been reviewable by certiorari, but it explicitly forbade such contact without further court order. The Court did not reach the legal question of whether the doctor was a University employee.
Damsky v. University of Miami, __ So. 3d __, 39 Fla. L. Weekly D 2560 (3d DCA 12-10-14).

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