FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2023-2105

LT Case No. 2022-CA-000577

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LOUIS C. MORGENIER, III,

HEALTHCARE DEVELOPMENT 

PARTNERS OF AMERICA, LLC 

f/k/a/ HEALTHCARE 

DEVELOPMENT PARTNERS, INC., 

a Florida limited liability 

company, and CITRUS COUNTY 

ACO, LLC, d/b/a CITRUS ACO,

LLC, a Florida limited liability 

company, 

Petitioners, 

v.

J. DICKERT POPULATION HEALTH

SERVICES LLC and A. DICKERT

POPULATION HEALTH SERVICES

LLC,

Respondents. 

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Petition for Certiorari Review of Order 

from the Circuit Court for Citrus County. 

Carol A. Falvey, Judge. 

Houston S. Park, III, Andrew M. Feldman, Christopher J. 

Fraga, and Charles G. Short, of Klein Park & Lowe, P.L., 

Miami, for Petitioners. 
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Kirk S. Davis, and Mark J. Bernet, Tampa, and Diane G. DeWolf, 

B.C.S., of Akerman LLP, Tallahassee, for Respondents.

June 21, 2024

PRATT, J.

On June 19, 2023, following a hearing, the trial court entered 

an order granting Respondents’ third motion to compel discovery. 

The order requires Petitioners, who are defendants in the 

litigation, to produce to Respondents certain documents that 

Petitioners consulted in connection with developing a Physicians 

Outreach Program (“POP”) and Enhanced Primary Care Program 

(“EPCP”). As relevant here, the ordered production includes 

“patient records (in native format).” Petitioners have filed a 

petition for a writ of certiorari to quash the order. 

In their petition, Petitioners assert that the patient health 

records they consulted when developing the POP and EPCP are 

confidential medical records of nonparties who have not been 

notified of, and have not consented to, the disclosure of their 

medical records. They argue that the trial court’s order departs 

from the essential requirements of the law because it places them 

in the untenable position of choosing between compliance with the 

order and compliance with section 456.057(7), Florida Statutes 

(2020), which safeguards patients’ confidential health information. 

Respondents, on the other hand, contend that the ordered 

production is lawful because the trial court took reasonable steps 

to preserve patients’ confidentiality, even though it did not order 

removal of their personal identifying information and otherwise 

required that the records be produced in native format. 

Petitioners have chosen an appropriate vehicle to obtain 

review of the trial court’s order. To receive a writ of certiorari, a 

petitioner must show: “(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.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 

822 (Fla. 2004) (quotation marks and citation omitted). This 

standard is met where a court orders production of confidential 
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third-party medical records in a manner that would violate 

applicable legal protections for confidentiality. See McKnight v. 

State, 335 So. 3d 190, 191–92 (Fla. 5th DCA 2022); Paylan v. 

Fitzgerald, 223 So. 3d 431, 434 (Fla. 2d DCA 2017); Tyson v. State, 

114 So. 3d 443, 444–45 (Fla. 5th DCA 2013). Thus, Petitioners’ 

entitlement to certiorari relief turns on whether the trial court’s 

order is consistent with section 456.057. 

Section 456.057(7)(a) provides that, subject to certain 

enumerated exceptions, patient medical records “may not be 

furnished to . . . any person other than the patient, the patient’s 

legal representative, or other health care practitioners and 

providers involved in the patient’s care or treatment, except upon 

written authorization from the patient.” § 456.057(7)(a), Fla. Stat. 

(2020). Respondents do not dispute whether the materials at issue 

qualify as confidential records within the meaning of the statute. 

Indeed, in their response, Respondents acknowledge that 

“[f]acially, the statute would seem to preclude” the production of 

the requested documents “insofar as they contain a third party 

patient’s medical records, unless the patient first receives notice 

and provides written consent.” Instead, Respondents raise a 

practical point: Respondents “cannot obtain patients’ consent 

unless they know who they are, but they cannot know the identity 

of the patients unless they receive the records.” 

Respondents do not point to language in the statute that 

provides an exception for the practical problem they raise. Instead, 

they turn to precedent: Amente v. Newman, 653 So. 2d 1030 (Fla. 

1995). There, the plaintiffs brought a medical malpractice claim 

against the doctor who delivered their child, alleging that the 

doctor’s failure to use a certain kind of delivery bed caused the 

child’s injury. Id. at 1031. During discovery, they sought 

“production of the complete medical records for all of [the doctor’s] 

‘markedly obese’ patients giving birth” during a two-year period.

Id. The plaintiffs “specifically requested that all patientidentifying information be redacted (removed or blacked out) from 

the medical records prior to production.” Id. The trial court ordered 

the requested production. Id. Aligning with the approach of the 

Second and Third Districts, our court granted a writ of certiorari 

and quashed the order, reasoning in part that the ordered 

production would circumvent the notice requirement of section 
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455.241(2), Florida Statutes (1991), the predecessor to section 

456.057. Id. The Fourth District, on the other hand, had twice 

declined to issue the writ under materially similar circumstances. 

Id.

On review of our certification of conflict, the Florida Supreme 

Court approved the Fourth District’s decisions, disapproved the 

Second and Third Districts’, and quashed ours. Id. at 1033. The 

Court found inapplicable the statute’s requirement that the party 

seeking the records must first give “proper notice to the patient or 

his legal representative” before compelling production. Id. at 1032

(emphasis and quotation marks omitted). It reasoned that 

“applying the statute to the request for discovery” would create “an 

anomaly in that the [plaintiffs] could not give the requisite notice 

because they did not know the patients’ names and addresses, yet 

they could not be given the names and addresses without revealing 

the patients’ identities.” Id. To avoid this “absurd result,” the 

Court held the statutory notice requirement “inapplicable to 

situations such as this as long as the medical records are properly 

redacted so as to protect the patient’s identity.” Id. (emphasis 

added).

Amente does not control the petition now before us. Here, the 

trial court did not order production of redacted records. Rather, it 

ordered production of records in native format; in other words, 

records that contain patients’ personal identifying information. 

Respondents observe that the ordered production was subject to a 

confidentiality order. However, unlike redactions, a confidentiality 

order does not “protect the patient’s identity” from disclosure, id.; 

it simply limits the number of persons to whom the patient’s 

identity is disclosed. 

Respondents, therefore, ask us to extend Amente. We decline 

to do so for three reasons. 

First, Amente applied the absurdity doctrine, a contextual 

interpretive canon that must be applied very sparingly. We ought 

not brush aside the statutory text, debated and enacted by the 

people’s representatives, based on our distaste for the result that 

it achieves. See Antonin Scalia & Bryan A. Garner, Reading Law: 

The Interpretation of Legal Texts 237 (2012) (noting that overuse 
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of the absurdity doctrine leads to the “slippery slope” of “judicial 

revision” of legal texts “to make them (in the judges’ view) more 

reasonable”). “Deciding what competing values will or will not be 

sacrificed to the achievement of a particular objective is the very 

essence of legislative choice,” Rodriguez v. United States, 480 U.S. 

522, 526 (1987), and “‘the judiciary may not sit as a 

superlegislature to judge the wisdom or desirability of legislative 

policy determinations made in areas that neither affect 

fundamental rights nor proceed along suspect lines,’” Fla. Patient’s

Compensation Fund v. Von Stetina, 474 So. 2d 783, 789 (Fla. 1985) 

(quoting City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976)). 

We must not treat the law as “a spirit disembodied from its letter.” 

T.G. United, Inc. v. AADD Properties, Inc., 371 So. 3d 396, 402 (Fla. 

5th DCA 2023). 

For these reasons, the absurdity doctrine has carefully crafted 

limitations. Indeed, since Amente, the Florida Supreme Court has 

made clear that we must follow “the ‘supremacy-of-the-text 

principle’” when interpreting statutes, Ham v. Portfolio Recovery 

Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020), and it has treated 

ambiguity as a precondition for applying the absurdity doctrine, 

see Hardee County v. FINR II, Inc., 221 So. 3d 1162, 1165 (Fla. 

2017) (applying the doctrine “[w]here a statute is open to multiple 

interpretations”); cf. id. at 1168 (Lawson, J., specially concurring) 

(finding the majority’s discussion of the absurdity doctrine

“improper” because “[t]he text of the statute fully resolves this 

case”). The Court also has instructed that the absurdity doctrine 

must not be applied to “rewrite the statute, rather than correct a 

‘technical or ministerial error.’” State v. Lewars, 259 So. 3d 793, 

801 (Fla. 2018) (quoting State v. Wright, 180 So. 3d 1043, 1048–49 

(Fla. 1st DCA 2015) (Makar, J., dissenting from denial of 

certification)). Respondents all but concede that section 456.057

unambiguously requires notice and authorization here, and they 

point to no technical or ministerial error in the statutory text

beyond the one that Amente corrected. Therefore, Respondents fail 

to establish any predicate for applying the absurdity doctrine. See 

Lewars, 259 So. 3d at 801; FINR II, Inc., 221 So. 3d at 1165; see 

also Scalia & Garner at 237–38 (noting two limitations on the 

doctrine: “(1) [t]he absurdity must consist of a disposition that no 

reasonable person could intend,” and “(2) [t]he absurdity must be

reparable by changing or supplying a particular word or phrase 
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whose omission or inclusion was a technical or ministerial error,” 

as distinct from “substantive errors arising from a drafter’s failure 

to appreciate the effect of certain provisions”).

Second, Amente itself carefully limited its holding to instances 

where patient records “are properly redacted so as to protect the 

patient’s identity.” 653 So. 2d at 1032; see Newman v. Cuyler, 664 

So. 2d 352, 352 (Fla. 5th DCA 1995) (citing Amente for the 

proposition that a “discovery request for medical records of nonparty patients is appropriate where trial court determines that 

request is relevant and all identifying information of non-party 

patients is redacted from records” (emphasis added)). As an 

intermediate court, we disregard such limiting language at our 

peril. That’s especially true where the limiting language follows 

from the Court’s application of the absurdity doctrine—a canon 

that must be carefully circumscribed to avoid undermining the 

supremacy-of-the-text principle.

Third, even if we accepted their premise that Amente

established a more flexible rule, Respondents offer no record 

support for their assertion that redaction of patients’ personal 

identifying information is infeasible due to the nature of the 

software program. Therefore, we lack a record basis to conclude 

that redaction could not satisfy both the statute, as construed by 

Amente, and Respondents’ need for the material. We also think it 

unlikely that any difficulty in making redactions could not be 

surmounted with at least one tried-and-true method: printing out 

records on physical paper, manually making the redactions, and 

manually applying any necessary pseudonyms to disambiguate 

the data. See Fla. R. Civ. P. 1.280(d). If the software program does 

not accommodate Amente redactions, the answer is not to place the 

convenience of e-discovery above the unambiguous requirements 

of section 456.057. Instead, the parties must shoulder some 

inconvenience to ensure compliance with the statute. 

Respondents counter that many of the records pertain to their 

own patients. They argue that section 456.057 poses no priorauthorization barrier to discovery of the unredacted records of 

their own patients. See § 456.057(7)(a)(1). Petitioners rightly 

concede the point. Therefore, our issuance of the writ shall be 

without prejudice to the court ordering native-format records of 
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Respondents’ own patients, provided that such records can be 

identified and separated from the other patient records. 

For the foregoing reasons, the trial court’s order departed 

from the essential requirements of the law, inflicting a continuing 

material injury that cannot be remedied on appeal. We therefore 

grant the petition, issue the writ, and quash the order. 

PETITION GRANTED; ORDER QUASHED. 

MAKAR and KILBANE, JJ., concur. 

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331. 

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