Recently, a Florida appeals found that the controversial law that changed the state’s malpractice presuit notice requirements in 2013 to allow doctors named as defendants to find out patient information under some circumstances was allowable and did not violate any laws. The plaintiff in the case, Emma Gayle Weaver, had contemplated filing a medical-malpractice lawsuit against a physician but was concerned about the constitutionality of the ex-parte provision, according to court documents. Weaver was the representative of the estate of the late Thomas E. Weaver, whose care was at issue in the malpractice allegation. It was the First District Court of Appeal who agreed to the summary judgment against plaintiff Emma Weaver, who asserted that the law violated the Health Insurance Portability and Accountability Act (HIPPA) impeded on the Florida Supreme Court’s authority to govern presuit discovery in medical malpractice cases, and violated state residents’ privacy rights.The appeals court said the rule is just like the Florida law and does not limit the court’s right to govern presuit discovery.
The dispute focused on part of the law that allows “ex parte communications.” The law requires patients to sign forms authorizing such communications before filing malpractice claims. In ex parte communications defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient’s attorney being present.
“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,” said the ruling, written by Judge James Wolf and joined by judges Lori Rowe and Ross Bilbrey. “Thus, by filing the medical malpractice lawsuit, the decedent’s medical condition is at issue.”
Another issue in the case involved whether the ex-parte change violated the constitutional separation of powers. The allegation dealt with whether the Legislature encroached on the role of the Florida Supreme Court, which sets procedures for the court system.
But the appeals court ruled that the change is not procedural but rather is “integral to the substantive pre-suit notice statute” involved in filing medical-malpractice cases.”
The effort to fight the law was coordinated by the Florida Justice Association which said it is concerned that allowing lawyers to engage in ex parte communications with doctors will cause patients to withhold vital information from their doctors that could prevent effective treatment.
In October, the Eleventh Circuit also found that the state law is fully compliant with HIPAA and its regulations.