DEBRA DAMSKY AND GERALD DAMSKY, PETITIONERS,
v.
UNIVERSITY OF MIAMI AND ALAN LIVINGSTONE, M.D., RESPONDENTS
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Petitioners challenged a trial court order authorizing ex parte communications between opposing counsel and the plaintiff's treating physician, Dr. Barkin. The court held that because the trial court found Dr. Barkin was an employee of the University of Miami based on factual findings at an evidentiary hearing, the communications did not violate Florida's physician-patient privilege statute, and the petitioners failed to demonstrate irreparable harm warranting certiorari review.
The petition for writ of certiorari is denied. The trial court's determination that Dr. Barkin was an employee of the University of Miami, based on factual findings at an evidentiary hearing, does not constitute a departure from the essential requirements of law, and petitioners failed to establish irreparable harm that cannot be remedied on post-judgment appeal.
[1] A petition for writ of certiorari requires the petitioner to establish that the order constitutes a departure from the essential requirements of law, resulting in irrepar…
[2] The determination of whether communications with a treating physician constitute prohibited disclosures under section 456.057, Florida Statutes, can involve issues of bot…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a petitioner seeking such relief must establish that the order constitutes a departure from the essential requirements of law, resulting in irreparable harm, that cannot be remedied on post-judgment appeal”
Establishes the stringent standard for obtaining certiorari relief.
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Join FLexlaw to unlock all legal intelligenceDebra Damsky and Gerald Damsky were involved in litigation against the University of Miami and Dr. Alan Livingstone. Dr. Jamie Barkin was Debra Damsky…
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Debra Damsky and Gerald Damsky challenge, by way of petition for writ of certiorari, the trial court’s non-final order which authorized respondents and their counsel to engage in ex parte communications with Dr. Jamie Barkin, Debra Dam-sky’s treating physician and a non-party to the litigation.1 Our scope of certiorari re*931view is narrow, and a petitioner seeking such relief must establish that the order constitutes a departure from the essential requirements of law, resulting in irreparable harm, that cannot be remedied on post-judgment appeal. Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812 (Fla.2004).
The central issue in this petition is whether Dr. Barkin was, at all times material, an employee of the University of Miami or Mount Sinai Hospital, so as to determine whether such communications constitute “disclosures” prohibited by section 456.057, Florida Statutes (2015). See generally, Lee Mem’l Health Sys. v. Smith, 40 So.3d 106 (Fla. 2d DCA 2010); Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So.2d 277 (Fla. 2d DCA 2005). Under the circumstances presented in this case, the question of whether such communications constitute disclosures under the statute involves issues of both fact and law. While the construction of relevant written agreements between Dr. Barkin, the University of Miami, and Mount Sinai is a question of law, the other factors and circumstances bearing upon the nature and scope of Dr. Barkin’s employment relationship -with the University of Miami and Mount Sinai Hospital are generally questions of fact. See, e.g., Jaar v. Univ. of Miami, 474 So.2d 239 (Fla. 3d DCA 1985); Bryant v. Duval County Hosp. Auth., 459 So.2d 1154 (Fla. 1st DCA 1984); Moles v. Gotti, 433 So.2d 1380 (Fla. 2d DCA 1983). This fact-intensive determination was made by the trial court, based upon evidence presented at an evidentiary hearing. The trial court determined that Dr. Barkin was an employee of the University of Miami and concluded therefore that such communications were not prohibited under section 456.057. We cannot say that the trial court’s determinations constitute a departure from the essential requirements of the law. Even if the trial court was presented with conflicting evidence on the issue of Dr. Barkin’s employment relationship, the trial court by its determination resolved any such conflicts, and we are not at liberty to reweigh this evidence.
Petition denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Reeves v. Fleetwood Homes OF Fla., Inc., 889 So. 2d 812 (Fla. 2004)
- Jaar v. The Univ. OF Miami, 474 So. 2d 239 (Fla. 3d DCA 1985)
- Damsky v. Univ. OF Miami & Alan Livingstone, M.D., 152 So. 3d 789 (Fla. 3d DCA 2014)
- Est. OF Delia F. Stephens v. Galen Health Care, Inc., 911 So. 2d 277 (Fla. 2d DCA 2005)
- Bryant v. Duval Cnty. Hosp. Auth., 459 So. 2d 1154 (Fla. 1st DCA 1984)
- Moles v. Edward W. Gotti, M.D., 433 So. 2d 1380 (Fla. 2d DCA 1983)
- LEE Mem'l Health Sys. v. Smith, 40 So. 3d 106 (Fla. 2d DCA 2010)