Medical malpractice law is constantly evolving. As courts strike down unconstitutional measures like damage caps the insurance and physician lobbies convince legislators to pass different laws to limit patients rights and prevent negligent healthcare providers from being held responsible for their actions. One route these lobbies have taken is supporting laws that force injured patients to choose between pursuing their malpractice claims and protecting their own privacy. Unfortunately a Florida appellate court just upheld one of these laws.
Florida Court Deals Blow to Patient Privacy
The Palm Beach Post reports that a Florida appellate court just upheld a Florida law that strips injured patients of some of their privacy rights. This decision deals with a law that the state legislature passed back in 2013. This law deals with what lawyers call “ex parte communications.” These are communications that representatives in one side of the lawsuit have without representatives of the other side being present. The specific ex parte communications covered by this law have to do with patients’ private medical information.
The law requires patients who choose to assert their rights and file a medical malpractice claim after they have been injured by their doctors’ negligence to sign forms authorizing certain ex parte communications when they file their suit. These forms allow attorneys for the negligent doctors to go get personal health information about the injured patient from other doctors who are not involved in the case. The doctors’ attorneys can get this information without the patients’ attorneys being present or having a meaningful opportunity to object.
What Was the Challenge to the Law?
This ruling came in the case of Emma Gayle Weaver. Ms. Weaver thought about filing a medical malpractice claim against a doctor who treated the now deceased Thomas E. Weaver. Ms. Weaver was the representative of Mr. Weaver’s estate. The treatment Mr. Weaver received before his death was the subject of the malpractice accusations. Ms. Weaver was concerned about the constitutionality of the ex parte law. So her attorneys challenged the statute. They argued in part that the law violates Florida’s state constitution. That constitution includes an explicit right to privacy. The appellate court rejected this claim, finding that any privacy right attached to a patient’s malpractice claim is waived once the information is placed at issue by the filing of a malpractice claim. This may seem reasonable in those case where the information is relevant to the lawsuit. But the law does not provide any real safeguards to make sure that private information is only disclosed when absolutely necessary.
Another argument was that the law is unconstitutional because it violates the separation of powers in Florida because the Florida Supreme Court is charged with setting procedures for the court system. The appellate court rejected this argument, saying that the law is not procedural but instead is “integral to the substantive pre-suit notice statute” that is involved in Florida medical malpractice cases.
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