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Personal Injury · Wrongful Death · Medical Malpractice

Some Privacy Rights Waived In Medical Malpractice Suits

A recent change in Florida medical malpractice law means that certain patient privacy rights are now waived in malpractice lawsuits. A three-judge panel of the First District Court of Appeal upheld the constitutionality of the change to the 2013 law. The change was also upheld in 2014 by a federal appeals court.

Specifics of the Case

The plaintiff in the case at hand, Emma Gayle Weaver, filed the challenge to the law in Escambia County in 2013. She was the representative of the estate of a man whose care was the focus of malpractice allegations. Ms. Weaver was considering filing a malpractice lawsuit against a treating physician, but was unsure whether the changed law was constitutional. She raised four state constitutional challenges and one federal constitutional challenge. The state challenges alleged that the law violates the separation of powers doctrine, violates the constitutional limitation on special legislation, unlawfully burdens the constitutional guarantee of free access to courts, and violates the decedent’s right to privacy guaranteed by the state constitution. She also alleged that the law is preempted by the federal Health Insurance Portability Accountability Act of 1996 (“HIPAA”). The trial court held that statutory changes were all constitutional, and the appellate court upheld that decision.

The change in the law now requires that patients sign a form to authorize certain “ex parte” communications before filing a medical malpractice suit. An “ex parte” communication is a direct or indirect communication regarding the case without the knowledge, consent, or presence of each party involved in the case. (These types of communications are generally prohibited among parties in lawsuits.) The law in question allows defense lawyers to obtain personal health information about the plaintiff (the patient) in order to defend the doctor accused of medical malpractice. This information could come without the plaintiff’s knowledge and without the plaintiff being present. It could come from other physicians who treated the plaintiff. The current status of the law could jeopardize a patient’s ability to present their case in court because doctors and their defense lawyers now have access to information that may have previously been unavailable to them outside of discovery (the process governed by the rules of the court through which the parties in a lawsuit formally question each other and witnesses).

Contact a Medical Malpractice Professional

If you or a loved one have suffered from any type of injury while receiving medical care or treatment, you may be entitled to compensation. Privacy concerns differ in each case, and ultimately may be a very small issue or may not be an issue at all in your specific case. Every situation is unique, so it is critically important to speak with an experienced team of medical malpractice lawyers as soon as possible. The Miami lawyers at our firm are available to advise you of your rights in your individual situation. Time is of the essence, as statutes of limitations may apply in each case. Call Pita, Weber & Del Prado today at (305) 670-2889 or send us a message online for a free consultation.

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