Should Filing a Medical Malpractice Lawsuit Mean Giving Up Your Privacy Rights?

The Florida Supreme Court has agreed to hear yet another appeal related to medical malpractice. This case addresses a 2013 law adopted by the Florida legislature that significantly compromises a patient’s right to medical privacy. A plaintiff pursuing a medical malpractice case on behalf of her late husband has asked the Supreme Court to declare this law unconstitutional.

Legislature Creates Special Rules to Help Doctors, Burden Patients

Florida imposes strict requirements on any injured patient who has a medical malpractice claim. Among other things, Florida law requires 90 days advance notice before the patient can actually file a lawsuit. During this 90-day period, the medical provider (and its insurance company) must conduct an internal review to determine their potential liability. This pre-suit period also allows the victim and the medical provider to conduct “informal discovery” related to the claim.

Prior to 2013, this pre-suit discovery took one of three forms: unsworn statements by the parties, requests for documents or things, or physical and mental examinations. The 2013 law added a fourth method of discovery: interviews with other health care providers who treated the victim. Under this new law, when a patient serves a pre-suit notice on a medical provider, he or she must also authorize the “release of protected health information” to the provider and its insurance company. This means the health care provider accused of malpractice has the right to interview the patient’s other doctors “ex parte,” i.e., outside the presence of the patient or her attorney.

The plaintiff in the case now before the Supreme Court argues these requirements violate her late husband’s right to medical privacy, as well the Florida Constitution’s guarantee of access to the courts and prohibition on “special legislation.” Last July, the Florida First District Court of Appeal rejected the widow’s lawsuit, holding there was no “expectation of privacy” once a patient files a medical malpractice lawsuit, and the new discovery rule was no more burdensome to plaintiffs than the pre-existing requirement of pre-suit notice.

In her preliminary filing with the Supreme Court, the widow argued the Florida legislature overstepped its bounds when it created a new form of discovery. The Supreme Court itself is solely responsible for determining rules of pre-trial discovery, she said, and “the Legislature has no constitutional authority to enact any law relating to practice and procedure.” As to the issue of privacy, the plaintiff’s appeal argues the 2013 law “specifically require claimants to identify immaterial treating health-care providers, which may be revelatory of other health issues a claimant wishes to keep private.” In other words, forcing patients to give potential defendants unfettered access to all of their other medical providers creates an impermissible—and unconstitutional—risk that information unrelated to the alleged malpractice will be disclosed.

The Supreme Court is expected to hear oral arguments in the widow’s appeal later this year.

Get Help from a Florida Medical Malpractice Lawyer

This case illustrates the complexity and difficulty of pursuing a medical malpractice lawsuit in Florida. That is why if you have suffered any injury to due to physician or hospital negligence, it is imperative you get in touch with an experienced Clearwater medical malpractice attorney who understands the system and can ensure your rights are protected. Contact the Law Office of Paul B. Genet, P.A., at 727-510-8802 to speak with a qualified medical malpractice lawyer right away.