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Florida Supreme Court Questions Whether State Medical Malpractice Law Violates Patient Privacy

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On December 8th, the Florida Supreme Court reviewed a case that could have repercussions for victims of medical malpractice who choose to bring malpractice lawsuits here in Florida. The case centers around a 2013 state medical malpractice law that allows what are known as “ex parte communications,” or communications between attorneys and doctors who have treated the patients involved in the lawsuits, but concerning issues that are completely unrelated to the malpractice allegations. Many have argued that the law deters people from bringing medical malpractice lawsuits in general due to privacy and disclosure concerns, as one justice described it, leading to a “chilling effect.”

What’s frightened many—including the Supreme Court justices—about the law is just how private medical information is, and how important maintaining that guarantee of privacy is in order for doctors to be able to properly and effectively treat their patients.

Constitutional Right to Privacy

The Florida Constitution guarantees privacy rights to citizens. Specifically, it declares that every natural person has the right to be let alone and free from intrusion into their private life. In addition, the court, not the state legislature, is the typically the branch authorized to make decisions concerning ex parte communications. In this sense, the Florida state legislature arguably overstepped its boundaries when it passed this law in 2013.

Federal Judge Previously Strikes Part of Law

In 2013—soon after the law was passed—a federal judge threw out that portion of the law that allowed defendant health care providers and their representatives to have these ex parte communications with the plaintiff’s doctors, indicating that it violated the federal Health Insurance Portability and Accountability Act (Act). Specifically, the judge found that the state law’s requirement that the defendant have ex parte access to the plaintiff’s medical providers did not constitute “voluntary permission,” as required under the Act, and that this statute was an attempt to circumvent federal requirements.

The Health Insurance Portability and Accountability Act (HIPAA)

HIPAA not only protects health insurance coverage for workers and their families in the event of losing or changing jobs, but it also requires that national standards be established when it comes to electronic healthcare transactions. Perhaps most importantly, its privacy rule requires covered entities to take all reasonable steps to ensure the confidentiality of communication. For example, hospitals can’t even reveal information over the phone to relatives of admitted patients.

Medical Malpractice & Civil Litigation Attorneys Serving Florida

When you have the victim of medical malpractice—or your civil rights have been violated—the law offices of Lavalle Brown & Ronan can help. Our Boca Raton attorneys have years of experience representing clients in and around Boca Raton with personal injury claims and civil litigation. Contact us today for a free consultation.

For more information and in depth analysis, please contact Attorney Ken Ronan at   kronan@bocalaw.com and Case Manager Richard Bagdasarian at rbagdasarian@bocalaw.com.


Richard Bagdasarian Attorney


Resources:

news4jax.com/news/florida/supreme-court-questions-medical-malpractice-law

flsenate.gov/Laws/Constitution#A1S23

floridabar.org/divcom/jn/jnnews01.nsf/8c9f13012b96736985256aa900624829/47c561f31b9d44dc85257bfd0046ab7c!OpenDocument

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.106.html

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