Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MICHAEL ZAWISTOWSKI and LORI HALTEMAN, Petitioners, v. MICHAEL GIBSON and GEICO GENERAL INSURANCE COMPANY, Respondents. No. 2D21-1703 April 27, 2022 Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Paul L. Huey, Judge. Anthony J. Russo and Mihaela Cabulea of Butler Weihmuller Katz Craig LLP, Tampa, for Petitioners. K. Mitch Espat of Espat & Johnson, P.A., Tampa, for Respondent Michael Gibson. No appearance for remaining Respondent. VILLANTI, Judge. Petitioners Michael Zawistowski and Lori Halteman seek certiorari review of two interlocutory orders compelling the production of records pertaining to Halteman's emergency medical treatment arising from a motor vehicle accident in which Respondent Michael Gibson was also injured. Because the trial court departed from the essential requirements of the law by failing to conduct an in camera review of the documents prior to their disclosure to the Respondents, we grant the petition, quash the two orders on review, and remand to the trial court to conduct an in camera review of the records to ensure only Halteman's medical information that is relevant to the proceedings below is disclosed. I. On March 13, 2018, Halteman was driving a vehicle owned by Zawistowski in Hillsborough County when she struck another vehicle driven by Gibson. Halteman was found unconscious at the accident scene by law enforcement and emergency responders and was airlifted to St. Joseph's Hospital in Tampa. Gibson alleges that Halteman was intoxicated at the time of the accident, but law enforcement did not perform a breathalyzer or field sobriety test. 2 Gibson argues that it was Halteman's lack of consciousness that precluded law enforcement from testing for any impairment. Gibson subsequently filed a four-count lawsuit alleging negligence against Halteman, vicarious liability and negligent entrustment against Zawistowski, and an uninsured motorist claim against Geico, Gibson's uninsured motorist insurance carrier. During the course of the litigation, Gibson moved to amend his complaint to include a count for punitive damages against Halteman on the basis of her alleged impairment at the time of the accident. In pursuit thereof, Gibson sought nonparty discovery from Hillsborough County Fire and Rescue (HCFR) and St. Joseph's Hospital. Specifically, Gibson filed a notice of production via subpoena duces tecum to St. Joseph's that requested Halteman's medical records "from the date of loss until the date of discharge." From HCFR, Gibson sought postaccident medical records via a video deposition of HCFR's records custodian. Halteman filed an objection and moved for protective orders as to both discovery requests, alleging medical privacy concerns with regard to St. Joseph's records and relevancy and privacy concerns with regard to HCFR's records. Following a hearing, the trial court denied 3 Halteman's motion for protective order and objection to production of her medical records and ordered Gibson to limit the records request to HCFR and St. Joseph's to those generated during the time Halteman was transported and admitted, respectively, due to the accident. Halteman moved for reconsideration of the trial court's ruling and for in camera inspection of her medical records, renewing her constitutional privacy rights argument and further alleging that her medical condition was not at issue in the litigation. Gibson responded that Halteman put her medical condition at issue by testifying at her deposition that (1) she had no recollection of the accident; (2) she had no recollection of being involved in other motor vehicle accidents in the minutes before the accident at issue; and (3) she had no recollection of the accident involving Gibson. Gibson further argued that Halteman put her medical condition at issue because, as she testified at her deposition, she has a history of drug and alcohol addiction and at the time she traveled to Florida, she was awaiting sentencing for a DUI charge in Pennsylvania. The trial court denied Halteman's motion for reconsideration and in camera inspection of medical records. 4 II. To obtain certiorari relief, a party must "demonstrate that the contested order constitutes '(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.' " Hett v. Barron-Lunde, 290 So. 3d 565, 569 (Fla. 2d DCA 2020) (alteration in original) (quoting Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454 (Fla. 2012)). "The last two elements are jurisdictional and must be analyzed before the first element." Tanner v. Hart, 313 So. 3d 805, 807 (Fla. 2d DCA 2021). "The threshold question that must be reached first is whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm." Rodriguez v. Miami-Dade County, 117 So. 3d 400, 404 (Fla. 2013). "Orders that require disclosure of confidential medical information meet the irreparable harm requirement for certiorari review because once such information is improperly disclosed, the harm caused by that disclosure cannot be undone." Paylan v. Fitzgerald, 223 So. 3d 431, 434 (Fla. 2d DCA 2017) (citing USAA Cas. Ins. Co. v. Callery, 66 So. 3d 315, 316 (Fla. 2d DCA 2011)). A finding of irreparable 5 harm not curable on appeal is justified when an opposing party to a lawsuit seeks medical or other records implicating one's constitutional right to privacy. James v. Veneziano, 98 So. 3d 697, 698 (Fla. 4th DCA 2012). In addition to establishing irreparable harm, one seeking certiorari review must also show that the trial court's order departs from the essential requirements of the law. See Tanner, 313 So. 3d at 807. "When personal medical records are sought, the State's interest in fair and efficient resolution of disputes by allowing broad discovery must be balanced against the individual's competing privacy interests to prevent an undue invasion of privacy." Barker v. Barker, 909 So. 2d 333, 338 (Fla. 2d DCA 2005) (citing Rasmussen v. S. Fla. Blood Serv., Inc., 500 So. 2d 533, 535 (Fla. 1987)). An order that permits the discovery of allegedly confidential or privileged information not materially related to the litigation will usually be found to warrant the writ of certiorari. See Tanner, 313 So. 3d at 807 ("Discovery orders requiring 'disclosure of claimed confidential information are reviewed with greater caution than those that are simply burdensome or costly due to overbreadth.' " (quoting Rousso v. Hannon, 146 So. 3d 66, 71 (Fla. 3d DCA 2014))). 6 Whether Halteman was under the influence of drugs, alcohol, or medication or had an inciting medical event prior to the accident is relevant to Gibson's claims and may be ascertainable from the records sought. See Fla. R. Civ. P. 1.280; McEnany v. Ryan, 44 So. 3d 245, 247 (Fla. 4th DCA 2010) ("[W]hether defendant was impaired . . . at the time of the accident would be a relevant issue."). There was competent substantial evidence to support the trial court's finding that the ambulance and hospital admission records for Halteman for the time period pertaining to the accident are relevant to Gibson's lawsuit despite Halteman's privacy objections. However, the trial court erred in not granting Halteman's request for an in camera inspection of her medical records. "[A] trial court departs from the essential requirements of law by ordering production of medical records without inspecting the records in camera 'to prevent disclosure of information that is not relevant to the litigation.' " Tanner, 313 So. 3d at 808 (quoting Barker, 909 So. 2d at 338)); see also Zarzaur v. Zarzaur, 213 So. 3d 1115, 1120 (Fla. 1st DCA 2017); James, 98 So. 3d at 698 ("[W]hen a party challenges a discovery order concerning material to which the party asserts his or her constitutional right to privacy, the trial court must conduct 7 an in camera examination to determine the relevance of the materials to the issues raised or implicated by the lawsuit." (emphasis added)). Despite the narrowly tailored requests, it is conceivable that those records may still contain private, confidential medical information not relevant to the accident that should be excluded from evidence. For this reason, we conclude that the trial court departed from the essential requirements of the law by failing to conduct an in camera review of the records sought to be produced. III. Accordingly, we grant the petition, quash the May 12, 2021, order denying Halteman's motion for protective order and the May 24, 2021, order denying Halteman's motion for reconsideration and for in camera inspection of her medical records, and remand to the trial court with instructions to conduct an in camera inspection of the medical records from HCFR and St. Joseph's. Petition granted, orders quashed, and remanded. KELLY and SLEET, JJ., Concur. Opinion subject to revision prior to official publication. 8