The battle to beat back misguided tort reform laws remains in full-effect. While many consider “tort reform” as synonymous with “damage caps,” it is important to remember that there are many other ways that certain interests groups try to take away rights from patients. The underlying theme of all tort reform proposals are rules which minimize injury victims rights to file suit at all, prevail in the suit, or receive full compensation for their losses.
At the outset, the first battle line in these matters is the ballot box and legislative chambers. Lawmakers are lobbied vociferously during debate about different laws pushed by insurance industry and healthcare industry behemoths. All those who are familiar with the political process appreciate the complexity in these legislative debates. Unfortunately, the pull of different groups is often sufficient to get even bad legislation through different chambers.
Yet, even if a tort reform is passed and become effective, there are other avenues for patient rights advocates to pursue: the courts. The judicial system is entrusted with ensuring that constitutional principles are respected. At times that means striking down laws which conflict with those governing documents. In fact, that is exactly what happened in Illinois in recent years. The General Assembly passed a bill to place arbitrary caps on certain damages awarded to resident by juries. That law was challenged and the Illinois Supreme Court eventually struck down the law as violating the separation of powers inherent in the state constitution.
Another Court Battle
It is along the same lines that some are challenging a law which recently took effect down in Florida. As discussed in the FL Business Journal, the law deals with automatic disclosure of patient medical information to defense attorneys after a medical malpractice lawsuit has been filed. The state law allows defense attorneys access to medical information in many more circumstances, even without patient approval. Essentially, the new law allows defense attorneys to interview third-party doctors (not named in a suit) ex-parte, without the patient or their attorney there to witness the exchange.
When the law first took effect, on July 1st, at least five lawsuits were filed. Those suits mostly noted how the law violated federal rights guaranteed under HIPPA–Health Insurance Portability Accountability Act of 1996.
As one advocate for patients explained, “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. What is worse is that the (defense) attorney can do whatever he or she wants to with that sensitive information.”
Recently, a mid-September hearing was scheduled on the matter to determine whether a temporary injunction should be issued preventing the law from being used until a final resolution is reached.
All of us who care about fairness in medical malpractice cases and respect for patients will be hoping for a positive resolution in this matter. It is important to fight back against all laws at the individual state and federal levels which limit patient rights in favor of deep-pocketed, powerful interests.
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