Wednesday, April 1, 2020

The 1st District Court of Appeals in Florida decided in late July 2015 on the constitutionality of a change in Florida’s medical-malpractice laws.  The court ruled that some privacy rights are “waived” when people go after malpractice lawsuits.

The three-judge panel decision arose from a 2013 law that allows ex parte communications. The law requires patients to execute forms authorizing such communications prior to filing malpractice claims.

The reason for the waivers is because in ex parte communications, defense attorneys representing a physician accused of malpractice could obtain personal health information about the patient involved in the lawsuit. The information could come from other medical providers who treated the patient, and disclosure could happen without the patient’s attorney being present.

The court’s ruling was the result of a challenge to the law filed in 2013 in Escambia County. The plaintiff in the case thought about filing a medical malpractice lawsuit against a physician but was concerned about the constitutionality of the ex-parte communications law, according to court documents.

The plaintiff was the representative of the estate of the patient who died.  The patient’s care was at issue in the malpractice allegations.

The 2013 challenge to the law brought up constitutional issues on the right to privacy in the Florida Constitution. The law requires disclosure of private health and medical information “without a compelling need for that information, in overly broad fashion without adequate safeguards against unnecessary disclosure, and without notice or opportunity to limit those disclosures.” 

The court’s ruling disagreed the ex-parte communications law violates the right to privacy in medical malpractice lawsuits.  By filing the medical malpractice lawsuit, the patient’s medical condition is at issue.

“It is well-established in Florida and across the country that any privacy rights that might attach to a claimant’s medical information are waived once that information is placed at issue by filing a medical malpractice claim,” according to the ruling, authored by Judge James Wolf.   

Another challenge to the law involved whether the ex-parte communications law violated the constitutional separation of powers. The concern was whether the Legislature imposed on the role of the Florida Supreme Court, which establishes procedures for the court system.

The appeals court decided the law is not procedural but “integral to the substantive pre-suit notice statute” involved in filing medical malpractice lawsuits.

Read the Article Here