Lawyers challenge medmal law that takes effect today
lorida doctors won a big legislative victory this year with the passage of a top priority bill for Senate President Don Gaetz that would allow the attorneys for doctors in medical malpractice claims to collect information on the private conversations between patients and other doctors without the patient's permission.
But the victory will be short-lived if a group of high powered attorneys have their way. In five separate complaints filed in federal and state court today, the lawyers claim that the so-called "ex parte" provisions of SB 1972 is an unconstitutional violation of the state's privacy laws and also violates the federal privacy protections in the Health Insurance Portability and Accountabilty Act, HIPAA.
The bill, which takes effect today, 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. 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. The lawyers tried and failed to get the provision rejected by lawmakers during the legislative session, warning that it could have a chilling effect on patients, prompting them to withhold vital information from their doctors that could prevent effective treatment. They also warned that doctors could be pressured or intimidated by their medical malpractice insurers from testifying in a medical negligence case because the communications could be used against them.
“When 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. “What 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 didn't want to say much, except this, in a statement: “It 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,'' he said.
Here are the links to the complaints:
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.
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)
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)
Ken Sobel, of Freedland Harwin, P.L. in Ft. Lauderdale, filed a state complaint in the
Circuit Court of the 17th Judicial Circuit (Broward).
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).