You probably already know about the onerous requirements that Florida law puts on people who have been injured by medical malpractice. Unlike many other legal areas, with medical malpractice, a victim cannot simply file a lawsuit. Rather, there is a complex process that must take place before the lawsuit even gets filed.
The Pre-Suit Process
The process includes a pre-suit investigation, usually performed by the victim’s own expert physicians, to ensure that there are reasonable grounds for a lawsuit. If there is, every possible defendant has to be given a notice of intent to sue. All medical records used by the victim to investigate the claim, must be provided to these defendants.
Informal discovery then takes place—written questions, in person depositions, and even, if the defendant chooses, compelling the victim to attend an examination by the defendant’s own expert witness physicians.
The 2013 Amendments
As invasive as that all sounds (especially considering it takes place before the lawsuit is even filed), in 2013, the legislature added even more requirements.
The amendments required a malpractice victim, as part of the pre-suit investigation process, to coordinate a time when the defendant can interview the victim’s treating physicians. The law placed no limit on how many interviews could be conducted, and even provided for follow-up interviews between defendants and the victim’s doctors.
Interviews had to be coordinated by the victim’s attorneys within 15 days of a defendant’s request, and 72 hours for any follow-up interview requests.
In any request for an interview (no matter how many were requested by the defendant), if the victim’s attorney does not coordinate this interview in these time periods, the law allowed a defendant to schedule the interview with the doctor without notice to the victim or the victim’s lawyer. The victim was also legally required to execute a document that provided permission for these secret interviews (also known as ex-parte communications) between defendants and victim’s doctors.
The law even required the victim consent to secret interviews between defendants and the victim’s expert witnesses, and insurers.
If the victim did not comply with these requirements, no suit could be filed.
Lawsuit Challenges the Amendments
These amendments were challenged in a recent lawsuit, where a wife sought damages after the death of her husband which she alleged was caused by medical malpractice. As personal representative of her husband’s estate, she challenged the new 2013 amendments as violating her right to access to the courts, and her right to privacy, both rights explicitly guaranteed by the Florida constitution.
Florida’s constitution has an explicitly written right to privacy, in contrast to the Federal Constitution, where, although privacy rights have been recognized by the U.S. Supreme Court, privacy is not specifically written in the Federal Constitution. Because of that, Florida residents have privacy rights that are broader than those protected by federal law.
It has been said that the privacy provision gives Floridians the right to determine how, why and when private information about themselves is disclosed. The privacy right extends to the right to keep medical information private.
There has been some controversy over whether someone who initiates a lawsuit based on medical malpractice waives that privacy. The logic is that someone filing a lawsuit does so voluntarily, and puts private information at issue in the case. Victims cannot also claim protection for that very same information.
Who Can Assert Privacy Rights
The case made it to the Florida Supreme Court. The Court first had to determine whether a representative of an estate can claim privacy on behalf of someone who is deceased. Citing case law, the Court held that privacy rights of deceased individuals remain protected even after death. Those privacy rights can be asserted by decedents, personal representatives, or representatives of an estate.
This is especially important because Florida law only allows an estate representative to file a malpractice lawsuit on behalf of a deceased. If the representative were not allowed to assert the decedent’s privacy rights, the right to privacy could not be asserted by anyone.
Whether Filing a Lawsuit Waives Privacy
The Court noted that it was true that the victim’s estate filed a lawsuit putting medical records and treatment at issue. But the Court recognized that the victim was seeking protection only from having to consent to secret, ex-parte communications between the doctors and the defendant, as the Amendments required. The victim was not seeking to shield all medical information from the defendant.
Even if some part of privacy was waived by the filing of a malpractice lawsuit, the Court noted that the 2013 amendments went beyond just medical information related to the lawsuit. By allowing a defendant to interview doctors ex-parte, the law created a situation where there would be nobody present during the interview to limit what was disclosed. Anything could be asked and answered in these interview, without the victim knowing or being able to stop it.
While a doctor would have a right to refuse to disclose this information, the Court noted that many doctors may feel pressured into doing so if asked by interviewing attorneys.
Practically, the Court also recognized that getting an interview with a doctor in 15 days or 72 hours as required by the Amendment to avoid the scheduling of the meeting without notice to the victim, is virtually impossible. Thus, the amendments set up a situation where defendants could interview doctors ex parte for the victim’s failure to comply with a time requirement that often would not be able to be met.
Ex Parte Interviews are Unnecessary
If such ex parte communications were vital to defend a case, that would be one thing. But information about a malpractice claim can be derived from medical records, depositions, and other means. Thus, a physician interview (much less one done in secret), was not necessary to allow defendants to defend against claims.
The Court found that the 2013 amendments required victims to either sacrifice their right to privacy, or sacrifice the ability to file a malpractice lawsuit. It struck down these sections of the 2013 Amendments as unconstitutional, in a victory for malpractice victims, privacy advocates, and anybody else who believes that both parties should be able to be a part of every stage of the litigation process.
Make sure that your malpractice case gets the attention that it deserves, and that your attorneys are ready to fight against any possible defense. Call Brill & Rinaldi for a free consultation to discuss damages that may be available if you are a victim of medical malpractice.