You can’t speak to my doctor without me being there!

In recent years, Florida’s legislature has made it much more difficult for injured patients to bring medical malpractice claims. One of the most draconian laws requires a medical malpractice victim to give the doctor’s or hospital’s lawyer the right to speak to their treating doctors without a representative being present at the meeting.

Can you imagine the intrusion on your privacy, if a lawyer gets to sit down with your treating doctor and discuss all the ins and outs of your medical treatment? Can you imagine how your doctor will behave the next time that you go in for treatment? Will the doctor think that you’re a malcontent and you will sue him  or her next time? Will the doctor think that it’s not worth keeping you as a patient, because he or she is going to be bothered with your medical malpractice claim? All these potential issues have caused a chilling effect on injured patients bring medical malpractice claims.

The Law’s Background

In 2013, Florida’s legislature, changed the malpractice law requiring patients, who claim they are victims of malpractice, to provide the potential defendant’s insurance representative (lawyer) with a medical authorization allowing the representative to speak with their doctors as many times as they liked. Specifically, this portion of the law read as follows:

Interviews of treating health care providers: A prospective defendant or his or her legal representative may interview the claimant’s treating health care providers consistent with the authorization for release of protected health information. This subparagraph does not require the claimant’s treating health care provider to submit to a request for an interview. Notice of intent to conduct an interview shall be provided to claimant…, who shall be responsible for arranging a mutually convenient date, time and location for the interview within 15 days after the request is made.

In support of changing the law, the legislature said that this new requirement would foster settlement of claims and save money. The Supreme Court called BS on this saying:

Supposed facilitation of settlement is not a reality for either party in medical malpractice litigation.

The court went on to say:

As the Illinois appellate court opined, a secret ex-parte interview with a treating health care provider does not lead to the discovery of medical information that would not otherwise be discoverable, such that it facilitates settlement.

The Story

Mr. Weaver died as a result of alleged malpractice caused by Dr. Myers. Mrs. Myers brought a claim against Dr. Myers, which was eventually dismissed by the trial court and the dismissal was upheld by the District Court of Appeals.

In her appeal to the Supreme Court, Mrs. Weaver took the position that the law coerced and forced victims of medical malpractice into foregoing a fundamental right of privacy by providing the medial authorization allowing ex-parte communication with their doctors.

The Supreme Court agreed and struck down these two portions of the law:

766.1065(3)(E), which expressly allows folks who represent the health care provider to interview the patient’s health care providers without the presence of the patient or patient’s lawyer.

The second part of the law struck down is 766.106(6)(b)(5), which put the onus on the patient’s lawyer to schedule the interview with the doctor within a certain time limit or forfeit their right to any notice that an interview was going to take place.

Conclusion

I’ve handled a number of medical malpractice claims on both sides. In practice, insurance companies want to hold onto their money for as long as possible, which doesn’t foster early and less costly resolution of claims. In medical malpractice claims, there are also a number of other issues that can impact the health care providers ability to practice. All medical malpractice payouts have to be reported to the national practitioner data bank, which is used by hospitals and ambulatory surgery centers, when credentialing health care providers. NPDB information is also used by health insurance companies when deciding whether to allow physicians onto their panels of preferred providers.  Therefore, health care providers are hesitant to agree to settlement of these claims because of the reporting.

In the last month, the Florida Supreme Court has given alleged victims of malpractice victories on two fronts. In Bartow Hospital, the court said that the hospital cannot hide behind its work product privilege and Amendment 7 (Patients Right to Know) requires hospitals to provide adverse medical incident information to patients.

And now, Weaver stops a doctor’s or hospital’s lawyer from speaking with the patient’s treating physicians outside of deposition process.