DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JOSEPH CASTELLANO, M.D.,

Petitioner,

v.

DAVID HALPERN, M.D. and WEST FLORIDA-MHT, LLC d/b/a HCA 

FLORIDA SOUTH TAMPA HOSPITAL,

Respondents.

Nos. 2D22-3154, 2D22-4155, and 2D22-4156

CONSOLIDATED

December 29, 2023

Petition for Writ of Certiorari to the Circuit Court for Hillsborough 

County; Melissa M. Polo and James M. Barton, II, Judges.

Stuart Jay Levine of Walters Levine & Degrave, Tampa, for Petitioner.

Martin B. Goldberg; Jennifer Christianson; Jonathan E. Siegelaub; and 

Ashley P. Singrossi of Lash & Goldberg, LLP, Miami, for Respondent 

David Halpern, M.D.

Walter J. Tache and Magda C. Rodriguez of Tache, Bronis and Descalzo, 

P.A., Miami, Florida, for Respondent West Florida-MHT, LLC d/b/a HCA 

Florida South Tampa Hospital.

KELLY, Judge.
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In these consolidated petitions for writ of certiorari, petitioner 

Joseph Castellano, M.D., asks us to quash the order of the trial court 

sustaining respondent David Halpern, M.D.'s objections to discovery 

propounded by Castellano in his lawsuit against Halpern for intentional 

interference with a business relationship and defamation per se. He also 

asks us to quash the protective order entered in favor of respondent West 

Florida-MHT, LLC d/b/a HCA Florida South Tampa Hospital (HCA), a 

non-party below. Halpern and HCA argued, and the trial court agreed, 

that all discovery sought by Castellano was privileged and confidential 

under sections 395.0191(8), 395.0193(8), and 766.101(5),1 Florida 

Statutes (2021), provisions which afford confidentiality in connection 

with applications for hospital staff membership and clinical privileges, 

hospital peer review and disciplinary proceedings, and hospital medical 

review committee proceedings respectively.2 We conclude that the trial 

1 We note that constitutional challenges to these statutes have been 

raised on the basis of article X, section 25, of the Florida Constitution 

("[P]atients have a right to have access to any records made or received in 

the course of business by a health care facility or provider relating to any 

adverse medical incident."); Edwards v. Thomas, 229 So. 3d 277, 287 

(Fla. 2017) (holding that article X, section 25 "eliminat[ed] all discovery 

restrictions on 'any records . . . relating to any adverse medical incident' 

") (omission in original). However, the constitutional exception to the 

privilege is not at issue in this case. See, e.g., Tarpon Springs Hosp. 

Found., Inc. v. White, 286 So. 3d 879, 882-83 (Fla. 2d DCA 2019) (holding 

that the constitutional exception to the privilege protecting records of a 

hospital board from discovery in any civil action against a provider of 

professional health services did not apply because the action did not 

involve an "established adverse medical incident"). 

2 These statutes also contain provisions providing immunity to 

participants in those processes for actions "arising out of or related to 

carrying out the provisions" of the various statutes. See § 395.0191(7); 

see also § 766.101(8). In Halpern v. Castellano, 339 So. 3d 343 (Fla. 2d 

DCA 2022), we denied Halpern's petition for certiorari asking us to quash 

the order of the trial court denying his motion to dismiss Castellano's 
3

court's determination that the discovery Castellano seeks is protected 

departs from the plain language of the statutes under which Halpern and 

HCA claim privilege, and that precluding the requested discovery will 

destroy Castellano's ability to prove his claim at trial. Accordingly, we 

grant the petitions and quash the trial court's orders.

I. Facts

Castellano is a board-certified general surgeon who performs 

cosmetic surgery. Halpern is a board-certified plastic surgeon. The two 

doctors are competitors. In the past, Castellano, who had general 

surgery privileges at HCA, unsuccessfully sought to obtain permission to 

perform certain cosmetic surgery procedures at the hospital. At that 

time, only board-certified plastic surgeons were permitted to perform 

those procedures. Faced with this reality, Castellano approached a 

member of HCA's Medical Executive Committee (MEC) and proposed that 

HCA add a new clinical practice area in cosmetic surgery to its existing 

practice areas so that general surgeons could apply for clinical privileges 

to perform procedures currently limited to plastic surgeons. The MEC 

thought the idea was worth exploring and, per the hospital's bylaws, 

referred the matter to the Credentialing Committee for study. As part of 

its investigation into whether HCA should add a cosmetic surgery 

practice, the Credentialing Committee interviewed Halpern to get his 

views on the subject. He strongly opposed the proposal. Nevertheless, 

the Committee ultimately suggested to the MEC that it recommend the 

idea to HCA's Board of Trustees.

When Halpern learned that the MEC voted in favor of adding the 

new practice area and that it was going to recommend it to the Board, he 

complaint based on his claim that he was entitled to immunity under 

these statutes.
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sent a letter to HCA's chief of staff, who was also a member of the MEC, 

with copies to the hospital's chief executive officer, its chief medical 

officer, and the chair of HCA's Board stating his objection. It is this letter 

that is at the heart of Castellano's complaint against Halpern for 

defamation and intentional interference with a business relationship. 

The letter in its entirety states:

It has come to my attention that certain cosmetic surgery 

privileges are being put forth to the Board of Governors 

meeting without my knowledge or input from you. Not for a 

lack of my availability or interest in this issue which you are 

keenly aware of. As you represent the entire staff of Memorial 

Hospital at this meeting I find this very disturbing and frankly 

a backhanded move on the part of the MEC. I formally 

request to be allowed to present my concerns (as well as every 

other Board Certified Plastic Surgeon on Staff and possibly 

every Board Certified Physician on Staff) to the Board in 

person since you have willfully excluded me from this 

process. Please reply in writing your response to this request 

or call me before the meeting. If you deny me this privilege, I 

will petition the Board itself but feel it is best to stay within 

the framework of the medical staff to do so.

I am rather dismayed that you and the MEC would continue 

to consider this issue as I thought it was resolved and had its 

due process. Obviously not. I think that the Medical 

executive committee does not realize the seriousness of this 

proposal and the ramifications for the staff, the community[,] 

and the hospital itself. I am sure that the Board of Governors 

WILL want to hear both sides of the story and finally resolve 

this issue which ALL privileging is based upon. It is not 

about petty competitiveness but of patient safety in our 

community and within the hospital itself. IF you cannot see 

this or fully comprehend this then I am sorry for you and all 

the other misguided members of the MEC. I must protect the 

patients in our community and our beloved hospital which 

you will put at great risk, with little or no reward, with this 

irresponsible and unnecessary request.
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The Board ultimately voted against the proposal to add a practice area in 

cosmetic surgery. Castellano's lawsuit followed.

The amended complaint's basic allegations are that Halpern knew 

it was Castellano who had advocated for the cosmetic surgery proposal, 

and that he knew Castellano intended to apply for cosmetic surgery 

privileges should HCA approve the idea. The amended complaint alleges 

Halpern's letter contains false statements of fact about the ability of 

cosmetic surgeons to safely practice cosmetic surgery, and that Halpern 

intentionally and willfully made the false and defamatory statements for 

malicious and anti-competitive purposes and that as a result Castellano 

was damaged. All the discovery requests at issue here seek information 

related to the contents of the letter.

II. Analysis

"[C]ertiorari is appropriate when a discovery order departs from the 

essential requirements of law, causing material injury to a petitioner 

throughout the remainder of the proceedings below and effectively 

leaving no adequate remedy on appeal." Allstate Ins. Co. v. Langston, 655 

So. 2d 91, 94 (Fla. 1995). In Giacalone v. Helen Ellis Memorial Hospital 

Foundation, Inc., 8 So. 3d 1232, 1234 (Fla. 2d DCA 2009), this court 

explained that "[c]ertiorari is rarely available to review orders denying 

discovery because in most cases the harm can be corrected on appeal."

However, when the requested discovery is relevant or is 

reasonably calculated to lead to the discovery of admissible 

evidence and the order denying that discovery effectively 

eviscerates a party's claim, defense, or counterclaim, relief by 

writ of certiorari is appropriate. The harm in such cases is 

not remediable on appeal because there is no practical way to 

determine after judgment how the requested discovery would 

have affected the outcome of the proceedings. 
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Id. at 1234-35. 

Because it goes to our jurisdiction, our first task is to examine 

whether the trial court's discovery orders cause "material injury" that 

cannot be remedied on appeal. See Gonzalez v. State, 15 So. 3d 37, 39 

(Fla. 2d DCA 2009) (explaining that "material and irreparable harm" is a 

jurisdictional requirement for certiorari relief). Halpern concedes that 

the discovery orders eviscerate Castellano's case.3 He contends, 

however, that this circumstance is not what results in irreparable harm. 

Rather, Halpern argues the harm results from the uncertainty regarding 

how the prohibition on discovery affected the outcome of the case. Here, 

he contends there is no uncertainty—the trial court's determination that 

the requested discovery is privileged will "entirely dispose of the action" 

for two related reasons. First, it will make it impossible for Castellano to 

make the evidentiary showing to prove his claims and second, it amounts 

to a finding that Halpern is immune from suit under the immunity 

provisions in the statutes and consequently, the court will eventually 

have to enter judgment in his favor. Thus, Halpern argues, Castellano 

cannot demonstrate irreparable harm because he "will be free to 

challenge the immunity rulings in an appeal from the judgment."

We believe this argument overlooks the fact that if Castellano is 

precluded from conducting the requested discovery not only can he not 

prove his claims, on direct appeal he "would have the nearly impossible 

task of proving that the trial court committed reversible, harmful error"; 

he could not even make a proffer of what the evidence would have shown 

had discovery been allowed. Anderson v. Duggan, 56 So. 3d 830, 832-33 

(Fla. 2d DCA 2011) (finding irreparable harm where a party was 

3 HCA's response is silent on this matter.
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precluded from obtaining documents needed to prove his claim thus 

preventing him from meeting his burden of proof and further making it 

"nearly impossible" to establish on appeal that the trial court erred). 

Accordingly, we conclude that under these circumstances, Castellano 

has established irreparable harm for the purposes of certiorari review.

Next, we must determine whether Castellano has shown that the 

trial court departed from clearly established law. 

"[C]learly established law" can derive from a variety of 

legal sources, including recent controlling case law, 

rules of court, statutes, and constitutional law. Thus, 

in addition to case law dealing with the same issue of 

law, an interpretation or application of a statute, a 

procedural rule, or a constitutional provision may be 

the basis for granting certiorari review.

Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003). A 

departure from clearly established law can be shown by the 

misapplication of the plain language in a statute. Gonzalez, 15 So. 3d at 

39. Accordingly, we must review the statutory provisions upon which 

Halpern and HCA base their claims of privilege to determine if the trial 

court's finding of privilege is supported by the plain language of those 

statutes.

The statutes at issue regulate hospital procedures governing the 

granting of staff membership and clinical privileges, physician discipline, 

and quality evaluation and improvement. See Holly v. Auld, 450 So. 2d 

217, 220 (Fla. 1984) (stating that the legislature "deemed it wise to 

encourage a degree of self-regulation by the medical profession through 

peer review and evaluation"), abrogated on other grounds by Conage v. 

United States, 346 So. 3d 594, 598 (Fla. 2022). Section 395.0191, titled 

"Staff membership and clinical privileges," directs the manner in which a 
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licensed facility, such as a hospital, is to consider applications for staff 

membership or clinical privileges. Section 395.0191(8) prohibits the 

discovery of "investigations, proceedings, and records" of a hospital board 

"in any civil action against a provider of professional health services 

arising out of matters which are the subject of evaluation and review by 

such board." Similarly, sections 395.0193(8) and 766.101(5) contain the 

same prohibition for the "investigations, proceedings, and records" of a 

hospital's peer review panel or medical review committee. Section 

395.0193 pertains to the "process of investigating and disciplining 

physicians pursuant to the state-mandated peer review process." 

§ 395.0193(1). Section 766.101 provides for the establishment of a 

committee 

to evaluate and improve the quality of health care rendered by 

providers of health service, to determine that health services 

rendered were professionally indicated or were performed in 

compliance with the applicable standard of care, or that the 

cost of health care rendered was considered reasonable by the 

providers of professional health services in the area.

§ 766.101(1)(a)1, l. 

It is undisputed that Castellano's lawsuit for defamation and 

intentional interference with a business relationship does not arise from 

the hospital's peer review or medical review processes, nor does it arise 

from the hospital's consideration of an application by Castellano for staff 

membership or clinical privileges. Perhaps recognizing the limited scope 

of the grant of privilege contained in these statutes, the respondents urge 

us to broadly interpret them arguing that we are obligated to honor the 

obvious legislative intent and policy behind the statutes even where that 
9

intent requires an interpretation that exceeds the literal language of the 

statutes.4 Our obligation is the opposite. 

As the supreme court explained in Ham v. Portfolio Recovery 

Associates, LLC, 308 So. 3d 942, 946-47 (Fla. 2020),

[i]n interpreting the statute, we follow the "supremacy-of-text 

principle"—namely, the principle that "[t]he words of a 

governing text are of paramount concern, and what they 

convey, in their context, is what the text means." Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of 

Legal Texts 56 (2012). We also adhere to Justice Joseph 

Story's view that "every word employed in [a legal text] is to be 

expounded in its plain, obvious, and common sense, unless 

the context furnishes some ground to control, qualify, or 

enlarge it." Advisory Op. to Governor re Implementation of 

Amendment 4, the Voting Restoration Amendment, 288 So. 3d 

1070, 1078 (Fla. 2020) (quoting Joseph Story, Commentaries 

on the Constitution of the United States 157-58 (1833), quoted 

in Scalia & Garner, Reading Law at 69).

(Alteration in original). "[W]e are precluded from construing an 

unambiguous statute in a way which would extend, modify or limit, its 

express terms or its reasonable and obvious implications." Lawnwood 

Med. Ctr., Inc. v. Sadow, 43 So. 3d 710, 721 (Fla. 4th DCA 2010) (quoting 

Donato v. Am. Tel. & Tel. Co., 767 So. 2d 1146, 1150-51 (Fla. 2000). 

Respondents characterize these statutes as providing 

"extraordinarily broad discovery immunity" provisions that protect from 

discovery any disciplinary, credentialing, or quality review materials. 

They make no real argument that what occurred here arose from the 

hospital's peer review or medical review committees. Instead, the 

4 We reject respondents' contention that permitting the discovery 

sought by Castellano in this case runs counter to the legislature's goal of 

encouraging "self-regulation by the medical profession through peer 

review and evaluation." See Holly, 450 So. 2d at 220. 
10

respondents focus on what they characterize as the credentialing 

process. 

Reduced to its essence, the respondents' argument is that even 

though the allegations in the petition do not arise from an application by 

Castellano for staff or clinical privileges, the privilege extends to the 

process by which the hospital sets the standards and procedures for 

acting on an application for privileges. They contend that if the cosmetic 

surgery proposal had been adopted, the hospital would then have had to 

set standards for considering and acting upon applications for staff 

membership or clinical privileges in that area; and therefore, the privilege 

should extend to Castellano's discovery requests in this case. 

We cannot accept this expansive reading of the statute. The plain 

language of section 395.0191(8) expressly limits the privilege to "any civil 

action against a provider of professional health services arising out of 

matters which are the subject of evaluation and review by such board," 

and the matters subject to evaluation and review by the board in the 

context of section 395.0191 are applications for staff membership or 

clinical privileges. The same analysis applies to sections 395.0193 (peer 

review) and 766.101 (medical review). Because the trial court extended 

the statutory privilege beyond what is provided for in the plain language 

of the statute, we conclude it departed from the essential requirements of 

law. We therefore grant Castellano's petitions for writ of certiorari and 

quash the trial court's discovery orders.

Petitions granted; orders quashed.

NORTHCUTT and LaROSE, JJ., Concur.
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Opinion subject to revision prior to official publication.