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Wallace v. Comprehensive Personal Care Services, Inc.

Florida Court of Appeals, Third District

June 26, 2019

Mark Wallace, Appellant,
v.
Comprehensive Personal Care Services, Inc., et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from a non-final order from the Circuit Court for Miami-Dade County No. 16-2767, Mindy S. Glazer, Judge.

          Stack Fernandez & Harris, P.A., and Brian J. Stack, for appellant.

          Legon Fodiman, P.A., and Todd R. Legon and William F. Rhodes, for appellee, Milton Wallace.

          Before SALTER, LOGUE, and HENDON, JJ.

          HENDON, J.

         Mark Wallace ("Mark"), in anticipation of filing a petition to determine incapacity of his father, Milton Wallace ("Milton"), pursuant to sections 744.3201 and 744.331, Florida Statutes (2018), informed the probate judge of his plan to attach certain medical records from his father's personal physician, Dr. Ranjan Duara, along with the expert written opinions of three physicians specializing in the fields of neurology, psychiatry, and radiology, who did not examine Milton and rendered their opinions solely based on their review of Milton's medical records. For the reasons that follow, we conclude that the trial judge properly entered an order that (1) enjoins Mark from attaching to, or referencing in, a petition to determine incapacity the medical records of his father, Milton, and the written expert opinions rendered by the three physicians; and (2) enjoins the parties, other than Milton, and the parties' counsels and/or representatives from having ex parte communications with the examining committee that the trial court will appoint following the filing of a petition to determine incapacity.

         I. Facts and Procedural History

         Following the death of Milton's wife, Comprehensive Personal Care Services, Inc. ("CPCS") initiated a trust proceeding against, among others, Milton and Mark, relating to an irrevocable trust executed in 2011 by Milton and his wife.[1] Mark filed an answer, a cross-claim, and a third-party complaint, alleging, among other things, that the third-party defendant has misled and fraudulently induced Milton, who is in his eighties, into transferring funds and assets earmarked for the irrevocable trust to the third-party defendant.

         In the trust proceeding, Mark issued a subpoena for deposition duces tecum to Milton's physician, Dr. Ranjan Duara of the Mount Sinai Hospital Wien Center for Alzheimer's Disease and Memory Disorders, and a subpoena duces tecum to Dr. Duara's records custodian, seeking production of Milton's medical records. Milton objected to the subpoenas and moved for a protective order and to quash the subpoenas duces tecum.

         Following a hearing, the trial court found that Mark had placed Milton's mental state at issue based on the claim of undue influence. After conducting an in camera review of Milton's medical records, the trial court entered a protective order on February 5, 2018, that provides that Milton's medical records shall be received only by certain attorneys of record in the trust proceeding; no other attorney can receive Milton's medical records without leave of court; the attorneys can share the records with their expert witnesses qualified in neurological diseases on the condition that the experts comply with the terms of the protective order; Milton's medical records cannot be used for any other purpose except in connection with the trust proceeding; there can be no further production or dissemination of Milton's medical records without leave of court; and the parties cannot file Milton's medical records with the court without leave of court. Thereafter, in a second protective order, the trial court ordered the production of other medical records, including Milton's MRIs, subject to the same restrictions set forth in the protective order entered on February 5, 2018.

         Following the entry of the protective orders, Mark's counsel hired three physicians-neurologist, psychiatrist, and radiologist-to review Milton's medical records that were the subject of the protective orders and to render their opinions. Without examining Milton, the physicians submitted to Mark's counsel written reports with their various medical opinions ("medical reports").

         Based on these medical reports, Mark decided that he would seek a determination that his father is incapacitated under Chapter 744 of the Florida Statutes, and to support his petition to determine incapacity, he would submit his father's medical records and the medical reports. However, as the protective orders placed restrictions on the dissemination and/or filing of Milton's medical records, Mark did not file the petition to determine incapacity, and instead sought leave of court to submit Milton's medical records and the medical reports upon the filing of a petition to determine incapacity ("motion for leave of court").[2] Milton objected to the motion for leave of court and filed a countermotion seeking the entry of an order prohibiting ex parte communications with members of the examining committee, when appointed.

         At the conclusion of the hearing on the motions, the trial court entered an order denying Mark's motion for leave of court and granting Milton's countermotion prohibiting ex parte communications. The order provides that, with the exception of Milton, the parties cannot utilize or disseminate Milton's confidential medical records as set forth in the protective order entered on February 5, 2018. Further, if a petition is filed against Milton, his confidential medical records cannot be attached to, incorporated in, or referenced in the petition. Finally, the trial court ruled that, with the exception of Milton, the parties and their counsels and/or representatives cannot communicate with any member of the examining committee, when appointed. Mark's non-final appeal followed.

         II. Issues

         The issues before this Court are whether the trial court erred by ruling that (1) if a petition to determine incapacity is filed in a separate proceeding under Chapter 744 of the Florida Statutes, the petitioner cannot attach, incorporate, or reference Milton's confidential medical records and/or the medical reports in the petition, and (2) the parties, other than Milton, and the parties' counsels and/or representatives cannot have ex parte communications with the members of the examining committee appointed by the trial court. As we find no error, we affirm the order under review.

          III. Analysis

         A. Milton's medical records and the medical reports

         Mark contends that the trial court erred by ruling that Milton's medical records and the medical reports cannot be attached to, incorporated in, or referenced in a petition to determine incapacity. In support of this argument, Mark suggests the members of the examining committee will not have a complete picture of Milton's alleged dementia prior to filing their written reports. We disagree.

         The Florida Legislature has set forth the mechanism that must be followed in a Chapter 744 proceeding to determine that a person is incapacitated. Section 744.3201 sets forth the requirements for the filing of a petition to determine incapacity, and section 744.331 addresses the procedures that must be followed once a petition to determine incapacity is filed.

         Section 744.3201 provides in its entirety as follows:

Petition to determine incapacity.-
(1) A petition to determine incapacity of a person may be executed by an adult person.
(2) The petition must be verified and must:
(a) State the name, age, and present address of the petitioner and his or her relationship to the alleged incapacitated person;
(b) State the name, age, county of residence, and present address of the alleged incapacitated person;
(c) Specify the primary language spoken by the alleged incapacitated person, if known;
(d) Allege that the petitioner believes the alleged incapacitated person to be incapacitated and specify the factual information on which such belief is based and the names and addresses of all persons known to the petitioner who have knowledge of such facts through personal observations;
(e) State the name and address of the alleged incapacitated person's attending or family physician, if known;
(f) State which rights enumerated in s. 744.3215 the alleged incapacitated person is incapable of exercising, to the best of petitioner's knowledge. If the petitioner has insufficient experience to make such judgments, the petition must so state; and
(g) State the names, relationships, and addresses of the next of kin of the alleged incapacitated person, so far as are known, specifying the ...

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