State Supreme Court Considers Pre-Suit Release of Information in Medical Malpractice Cases
Receiving medical care typically requires the patient to disclose private, potentially embarrassing, information to the doctor in order to fully diagnose the problem. Consequently, from the very beginning, doctors are placed in positions of trust, and asked to hold sensitive information with respect and care. This forced vulnerability is the reason why instances of medical malpractice are so devastating and hard to process. Florida law requires all parties wishing to sue a doctor for malpractice to go through a pre-suit investigation process where the physician and/or medical facility has an opportunity assess the merits of the claim and offer a settlement if so inclined. As part of the investigation process, the injured party must sign a release that authorizes the healthcare providers to collect any health-related information on the injured party they consider relevant. This far-reaching release can feel like another invasion of privacy and trust, and a case currently before the Supreme Court is questioning whether certain aspects of the law constitute an unreasonable invasion of privacy which may deter plaintiffs from filing lawsuits. The case is specifically looking at the fact that doctors and their representatives are permitted to question a plaintiff’s former doctors without anyone from the plaintiff’s side being present.
Release of Protected Health Information
A condition imposed by Florida law requires all parties wishing to sue for medical malpractice to include a blanket authorization for the release of protected medical information to all defendants. If this authorization is missing, the case is invalid from the start. Additionally, while an injured party has the ability to withdraw his/her consent to the release of information at any time, once consent is revoked, the case is immediately invalid, and must be started again, with the accompanying release, to proceed. Thus, not providing the authorization is really not an option, and the law does grant defendants wide parameters in how this release may be used. In particular, the law allows defendants to contact all healthcare providers that treated or examined the injured party, both past, current and future, for any injury related to the medical negligence claim. Further, and more concerning, is the requirement that plaintiffs provide a list of all healthcare providers who treated them in the two years previous to the alleged injury for any issue, whether directly related to the doctor’s negligence or not. Because the defendant is entitled to question these healthcare providers outside the plaintiff’s presence, private and non-relevant information could potentially be revealed and used by the defense to the plaintiff’s detriment, which is the basis for case mentioned above.
Pre-Suit Investigation Generally
As noted above, the release of healthcare information is part of the pre-suit notice and investigation period all medical malpractice cases are subject to follow. This required step gives physicians and other healthcare providers accused of negligence 90 days to evaluate the claims to determine potential liability and offer a settlement if so inclined. The purpose of this investigatory period is to reduce the amount of litigation, which doctors claim raises the cost of healthcare overall. At the end of the 90 days, the defendants must notify the injured party of one of the following:
- the claim is rejected, which permits the injured party to file a formal lawsuit;
- the terms of a settlement offer; or
- a request to enter arbitration solely on issue of damages.
If you believe you were injured due to a doctor’s negligence, talk to a medical malpractice lawyer about the possibility of suing for compensation. Medical malpractice cases are complicated and have strict deadlines, so an lawyer should be contacted as soon as possible to avoid the loss the important legal rights. The Miami law firm of Pita Weber & Del Prado has extensive experience in malpractice cases, and can evaluate the facts of your case. Contact us for a free consultation.