Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-973 _____________________________ SAINTS 120, LLC d/b/a CROSS CARE CENTER, Petitioner, v. MICHAELE M. MOORE, as Personal Representative of The Estate of Jennie Richard, Respondent. _____________________________ Petition for Writ of Certiorari—Original Jurisdiction. March 24, 2020 PER CURIAM. Saints 120, LLC, d/b/a Cross Care Center (the “nursing home”) has filed a petition for writ of certiorari seeking review of two discovery orders granting requests 1 and 2 of the “Second Request to Produce” filed by Michaele M. Moore, as personal representative of the estate of Jennie Richard (“the estate”) in this wrongful death action. By its petition, the nursing home asks this Court to quash both orders. The first discovery order, addressing request number 1, initially directed the nursing home to disclose “all documents” reflecting the names, addresses, and next of kin of all of the nursing home’s residents who were present in the facility on September 16, 2016, when the decedent suffered a fall, an event that—due to subsequent complications—allegedly caused her death. Later, in an order granting, in part, the nursing home’s motion for reconsideration, the trial court narrowed the scope of that discovery to the documents revealing the names, addresses, and next of kin of those residents who were present in the same unit as the decedent on the above date. The second discovery order, addressing the estate’s request number 2, compelled the nursing home to produce “copies of the Section Z of the Minimum Data Set (MDS) reports for all residents present in the facility” on September 16, 2016. The same order that granted reconsideration of the first discovery order denied reconsideration of this second order. I. Before certiorari relief may be granted, the petitioner must establish the following three elements: “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011) (internal quotation marks and citations omitted). “The last two elements are jurisdictional and must be analyzed before the court may even consider the first element.” Id. (citations omitted). Discovery orders seeking production of documents are peculiarly suited for review by certiorari “because when discovery is wrongfully granted ‘the complaining party is beyond relief.’” Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 999 (Fla. 1999) (quoting Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987)). Irreparable harm occurs when the information disclosed is “‘cat out of the bag’ material that could be used to injure another person or party outside the context of the litigation . . . .” Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995) (footnote omitted) (quoting Martin-Johnson, 509 So. 2d at 1100). The present case is precisely the type of “cat out of the bag” discovery that could cause irreparable harm to individuals not parties to the litigation because the two discovery orders could work to unlawfully infringe on the privacy rights of the non-party 2 nursing home residents in the confidentiality of their medical information. See, e.g., Sovereign Healthcare of Port St. Lucie, LLC v. Fernandes, 132 So. 3d 855, 857 (Fla. 4th DCA 2013) (finding petitioner established the jurisdictional basis to assess entitlement to certiorari relief because “[i]rreparable harm has been found where, as here, a discovery order potentially requires the disclosure of personal information subject to privacy restrictions on dissemination, including names and addresses of non-parties to a lawsuit”); Miller v. Savanna Maint. Ass’n, 979 So. 2d 1235, 1237 (Fla. 4th DCA 2008) (“Because the trial court’s order implicates the privacy rights of non-parties, this court has jurisdiction to review the issue via certiorari, as the violation of the right to privacy could not be adequately cured after the fact.”); Stamen v. Lipman, 641 So. 2d 453, 455 (Fla. 1st DCA 1994) (holding that the disclosure of patients’ names “would violate the privacy interests of nonparty patients” and cause irreparable injury to the petitioner’s professional reputation, “which harm cannot be remedied on appeal”). Consequently, we have jurisdiction. II. Having found we have jurisdiction to do so, we next consider whether the trial court departed from the essential requirements of the law by issuing the two discovery orders. A “departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error.” Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003) (citation omitted). We should exercise our discretion to grant certiorari review “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id. (emphasis in original.) Applying this standard of review to the first discovery order, we hold that the trial court’s subsequent narrowing of the breadth of its first order from “all residents” of the nursing home to “those residents in the same the unit” as the decedent did not cure what we find was a violation of clearly established principles of law that would result in a miscarriage of justice. To put request number 1 in perspective, the estate sought “all documents listing the complete names, addresses, and next of kin” of the nursing home’s residents to flush out any who might have witnessed the fall. As a 3 rule, “[d]iscovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence.” Langston, 655 So. 2d at 94. Yet, in its complaint, the estate alleged that the fall was “unwitnessed.” Therefore, we fail to see the relevance of the names of all the unit’s residents when no resident, by the estate’s singular allegation, witnessed the fall. But there is a more fundamental reason for concluding that the trial court departed from the essential requirements of the law when it issued the first discovery order. The names and contact information of the residents are “constitutionally protected, private details” under article I, section 23 of the Florida Constitution. Josifov v. Kamal-Hashmat, 217 So. 3d 1085, 1087 (Fla. 3d DCA 2017). As the Third District emphasized in Josifov, “the party seeking discovery of confidential information [concerning non-parties] must make a showing of necessity which outweighs the countervailing interest in maintaining the confidentiality of such information . . . .” Id. A trial court, therefore, must balance the need for the names and addresses against the interest in maintaining that confidentiality. Berkeley v. Eisen, 699 So. 2d 789, 790 (Fla. 4th DCA 1997) (citation omitted); see also Colonial Med. Specialties of S. Fla., Inc. v. United Diagnostic Labs., Inc., 674 So. 2d 923, 924 (Fla. 4th DCA 1996); Cmty. Psychiatric Ctrs. of Fla., Inc. v. Bevelacqua, 673 So. 2d 948, 951 (Fla. 4th DCA 1996). In the present case, in assessing the estate’s discovery request number 1, the trial court failed to balance the competing interests of the estate’s need to obtain information relevant to the case with the non-party nursing home residents’ privacy interests in that information. See Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936 (Fla. 2002). Apart from the Florida Constitution’s universal privacy protection, there is a statutory level of privacy afforded specifically to nursing home residents found in section 400.022, Florida Statutes. Section 400.022—popularly coined the nursing home residents’ “Bill of Rights”—provides “that nursing home residents’ ‘personal and medical records’ are confidential. § 400.022(1)(m), Fla. Stat.” Delta Health Grp., Inc. v. Estate of Collins, 36 So. 3d 711 (Fla. 1st DCA 2010). In Delta Health Group, a pre-trial discovery order compelled the nursing home to provide the plaintiff 4 in the underlying civil action with the name, birth date, social security number, forwarding address, and contact persons, if any, of a former nursing home resident. The individual had been identified by other witnesses as being the decedent’s roommate and the person who had alerted the decedent’s family member of specific nursing home staff interactions with the decedent. Id. at 711-12. The nursing home asserted in its petition for writ of certiorari that the trial court’s order departed from the essential requirements of section 400.022(1)(m). This Court concluded, however, that the order did not violate the law. We observed: The order presented for review is narrowly tailored, limiting the disclosure required to a single potential witness, allowing redaction of any medical information about that former nursing home resident, and acknowledging the former resident’s interest in privacy and confidentiality in any medical information. The record reflects that the former resident could possess information directly relevant to the allegations of the complaint. The trial court duly considered the discovery sought, the petitioner’s arguments for withholding the contact information, and the relevance and purpose of the information in the context of the pending lawsuit. The trial court properly balanced the individual former resident’s privacy considerations against the plaintiff’s need for the information already possessed by the nursing home. Id. at 712. As can be seen, the discovery order in Delta Health Group modeled the balancing of the concepts of personal rights and evidentiary relevancy. The striking of a similar balance is conspicuously absent in the present order. There is an additional reason—no less significant from the others—that compels us to conclude that the trial court departed from the essential requirements of the law in entering its first discovery order. Section 456.057, Florida Statutes, is entitled “Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.” It empowers health care patients to exercise control over their medical records and imparts rights to the patients in respect to the dissemination 5 of their medical information. As used in the statute, “the term ‘records owner’ means any health care practitioner who generates a medical record after making a physical or mental examination of, or administering treatment or dispensing legend drugs to, any person . . . .” § 456.057(1), Fla. Stat. Subsection (6) of the statute authorizes a person, or his or her legal guardian, to obtain health care records upon request to the person’s health care provider. More importantly, subsection (7)—the operative language for our purposes—provides that “such records” “may be furnished without written authorization” “[i]n any civil . . . action . . . upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.” § 456.057(7)(a)3., Fla. Stat. (emphasis added). The estate argues that a limited request for only the names and addresses of the residents, which it represented below could be found on a “facing sheet,” does not amount to a request for medical records and, therefore, is not subject to the notice requirement in section 456.057(7)(a)3. We disagree. First, an example of a patient’s facing sheet was not provided to the trial court for an in camera inspection to enable it to determine whether the facing sheet is a medical record and whether protected information appears on the sheet. Second, while the trial court’s order on the nursing home’s motion for reconsideration narrowed the breadth of the first discovery order to just the decedent’s unit, the fact remains that it did not change the directive of the first discovery order requiring the nursing home to “produce all documents” concerning those residents on the unit. (Emphasis added.) The production of “all documents” categorically surpasses facing sheets and could conceivably encompass all medical records referencing the names, addresses, and next of kin of nursing home residents. Finally, the estate’s argument promotes a strained reading of the statute. To the extent the estate’s request is for “all documents” reflecting the non-party residents’ names, addresses, and next of kin, which can only be gleaned from their medical records, there is an even greater need to apply the notice provisions of the statute. Cf. Amente v. Newman, 653 So. 2d 1030 (Fla. 1995). Amente teaches that the principal priority is to protect the non-party patients’ identities. Id. at 1032. In situations such as the 6 present one—when the goal is to cast a wide net designed to haul in as many names and addresses of non-party residents as possible—giving notice to those residents before releasing their medical records is paramount to protecting their privacy interests. The trial court, therefore, departed from the essential requirements of the law in compelling the release of the names, addresses, and next of kin of the non-party residents without conforming its order to the dictates of section 456.057(7)(a)3. The second discovery order, however, relating to the estate’s request number 2, does not share the same infirmity. Unlike the first order, the second order does seek to discover relevant evidence—or evidence that would lead to relevant evidence—in the form of patient information intended to aid the estate’s expert witness or witnesses in forming an opinion concerning the estate’s allegation of understaffing in the nursing home at the time of the decedent’s fall. The estate demonstrated that the subject information is general data gathered by any nursing home according to federal law for purposes of Medicare and Medicaid reimbursement. And, to the extent the trial court ordered that the nursing home could “redact the residents’ names, social security numbers, and dates of birth,” we conclude it did not depart from the essential requirements of the law. Amente, 653 So. 2d at 1032. III. From the foregoing, we grant the nursing home’s petition for writ of certiorari and QUASH that portion of the trial court’s order on motion for reconsideration, to the extent it relates to the estate’s request number 1 of its Second Request to Produce. On the other hand, we DENY the petition for writ of certiorari concerning the second discovery order granting the estate’s request number 2 of its Second Request to Produce. MAKAR, BILBREY, and JAY, JJ., concur. 7 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Michael B. Kornhauser and Jeffrey J. Molinaro of Fuerst Ittleman David & Joseph, Miami, for Petitioner. Jessie L. Harrell of The Harrell Firm, Jacksonville, for Respondent. 8