Five lawyers filed separate lawsuits in state and federal courts in an effort to overturn a new law designed to better protect doctors facing medical malpractice lawsuits. The lawsuits claim that the law that went into effect on Monday, July 1, 2013 violates the right to privacy in the state constitution as well as a federal law that protects patients’ privacy
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The bill, which took affect last week, allows for lawyers to to learn about a patient’s medical condition by talking to other treating doctors without the patient or his lawyer being present. Specifically, the law allows – but does not require – any health care provider called as a witness to breach patient confidentiality and give the defendant’s attorneys information about a patient’s treatment. It applies to the informal fact finding period before a lawsuit is filed. After a suit is filed, the state’s court rules apply that limit who attorneys can talk to and what they can ask. The law also requires that expert witnesses who are called against a defendant doctor practice the exact same kind of medicine and not just be in similar fields.
The legal challenge was coordinated by the Florida Justice Association, the trade association for the state’s trial lawyers.”With everything that is happening in the federal government right now involving the invasion of privacy of U.S. Citizens by their government, it is appalling to know that in Florida, our Legislature and governor have authorized doctors to divulge their patients’ personal, private medical history to complete strangers, said Debra Henley, executive director of the Florida Justice Association.
Many are worried that the law could have a chilling effect on patients, prompting them to withhold vital information from their doctors that could prevent effective treatment. There is also concern that doctors could be pressured or intimidated by their medical malpractce insurers from testifying in a medical negligence case because the communications could be used against them.
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œWhen no one is present to protect the victim, sensitive medical information may be disclosed, no matter how irrelevant, personal, or embarrassing it may be to the patient, Henley said in a statement. œWhat is worse is that the attorney can do whatever he or she wants to with that sensitive information.Florida Medical Association executive vice president Timothy J. Stapleton provided a response to the legal challenges stating: œIt is hardly surprising that the trial bar would challenge this, as they were content with the extremely uneven playing field that existed before this legislation was enacted.
The five separate complaints that hit the courts last week alleging HIPPA violations and challenging the constitutionality are:
- Dana Brooks, of Eubanks, Barrett, Fasig & Brooks in Tallahassee, filed a federal complaint in the United States District Court in the Northern District of Florida.
- Virginia Buchanan, of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola, filed a state complaint in the Circuit Court of the First Judicial Circuit (Escambia).
- Sean Domnick, of Domnick & Shevin, P.L. in Palm Beach Gardens, filed a federal complaint in the United States District Court in the Southern District of Florida. (Palm Beach)
- Neal Roth, of Grossman Roth, P.A. in Coral Gables, filed a federal complaint in the United States District Court in the Southern District of Florida. (Miami)
- Kenneth J. Sobel, of Freedland Harwin, P.L. in Ft. Lauderdale, filed a state complaint in the Circuit Court of the 17th Judicial Circuit (Broward). Sobel is also chair of the Medical Malpractice Challenge Committee and leader of this effort.
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