Floridians have a legal right to expect privacy with their physicians. But, under a new Florida law, the people of Florida can no longer count on the privacy of the doctor-patient relationship. How did this happen?
For decades Florida statutes, and the courts, required privacy protection for a patient injured by a negligent doctor in a medical malpractice case. The injured patient could be treated by a new doctor and not have to worry that the medical malpractice defendant would interfere. Now, though, by a new law effective July 1, 2013, the Florida legislature has attempted to give doctors involved in a medical malpractice claim – and their medical malpractice insurance companies – a tool to breach the privacy protection for patients, the very essence of the relationship between patients and their new doctors, known as subsequent treating physicians.
Action has been taken to stop this interference with doctor-patient confidentiality. The new law is being challenged in court. The following is a release from the Florida Justice Association:
FOR IMMEDIATE RELEASE:
Monday, July 1, 2013
ATTORNEYS STATEWIDE JOIN FORCES TO FIGHT FOR PATIENT PRIVACY
~Five separate complaints hit the courts today alleging HIPPA violations and challenging the constitutionality of Florida Senate Bill 1792~
TALLAHASSEE, FL—Attorneys from around the state today joined together to file legal challenges to the constitutionality of “ex parte communications” authorized by Florida Senate Bill 1792. The complaints claim the new law is a violation of the right to privacy as guaranteed by the Florida Constitution. The complaints also allege the law is a violation of the federal Health Insurance Portability and Accountability Act (HIPAA).
On June 5, 2013, Florida Governor Rick Scott signed into law Senate Bill 1792, which allows for “ex parte communications” in medical negligence cases. Ex parte communications are private conversations about a patient’s medical condition between defense attorneys and a patient’s nonparty, treating physician without the patient or the patient’s attorney present. The law becomes effective today.
“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. “On a week where our country celebrates all of the rights and liberties we hold dear as citizens, it is disheartening to know that our right to privacy no longer appears to be one of them.”
Opponents of the law are concerned that allowing lawyers to engage in ex parte communications will cause patients to withhold vital information from their doctors that could prevent effective treatment. Another concern is that such communications could lead to malpractice insurers, represented by the attorney, using those communications to threaten or intimidate the doctor from testifying in a medical negligence case or the victim from filing the case in the first place.
“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,” explained Henley. “What is worse is that the attorney can do whatever he or she wants to with that sensitive information.”
Three federal and two state complaints were filed today:
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).