The Republican-led Florida Legislature is considering amendments to Florida’s medical malpractice law to make it more difficult for victims of medical malpractice to win their medical malpractice cases and would also allow medical malpractice defendants’ lawyers to speak with the victims’ doctors one-on-one and without their patients’ permission.
Proposed Stricter Burden Of Proof For Medical Malpractice Victims
A proposed change in the law would substantially raise the level of proof that medical malpractice victims must meet in order to recover damages for their injuries if due to the alleged failure to order supplemental diagnostic medical tests. The proposed change reads as follows: In an action for damages based on death or personal injury which alleges that such death or injury resulted from the failure of a health care provider to order, perform, or administer supplemental diagnostic tests, the claimant has the burden of proving by clear and convincing evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care. Source
The Florida Supreme Court defines the proposed standard of proof known as “clear and convincing evidence” as “evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the issue.” Florida Standard Jury Instructions — Civil Cases, Standard Instruction 405.4.
The existing standard of proof in Florida medical malpractice cases is known as “greater weight of the evidence” which the Florida Supreme Court has defined as evidence that has “the more persuasive and convincing force and effect of the entire evidence in the case.” Florida Standard Jury Instructions — Civil Cases, Standard Instruction 405.3.
Obviously, the proposed stricter requirement for proof by evidence that is “precise, explicit…that it produces a firm belief or conviction” is a much higher burden than evidence that is “more persuasive.” If the proposed change becomes the medical malpractice law in Florida, it will be much more difficult for Florida medical malpractice victims to recover for their injuries resulting from medical malpractice committed by Florida doctors when the basis of the medical malpractice claim is the negligent failure of the doctor to order and obtain supplemental diagnostic tests, such as mammograms in failure to diagnose breast cancer cases.
Proposed Change: No Patient-Doctor Confidentiality For Medical Malpractice Victims
The other significant, major proposed change to Florida’s medical malpractice law would allow the attorneys for medical malpractice defendants and the medical malpractice defendants themselves to meet alone in private with all of the treating doctors of medical malpractice victims, without any restrictions whatsoever.
The proposed change in the law reads as follows: “A prospective defendant or his or her legal representative may interview the claimant’s treating health care providers without the presence of the claimant or the claimant’s legal representative.” Source
The proposed change in the law does not limit the extent or the subject matter of the discussions between the medical malpractice defendants, their attorneys, and the medical malpractice victims’ doctors; the proposed change in the law does not limit the extent or the subject of the disclosures by the victims’ treating doctors; and, the proposed change in the law does not restrict the doctors who would be violating the previously sacrosanct patient-doctor confidentiality to only those who treated the medical malpractice victims for the injuries caused by the alleged negligent care.
As the proposed change to the law is written, what would limit the defendants’ attorneys from discussing the sexual history of a medical malpractice victim with the victim’s treating gynecologist in a medical malpractice claim involving the failure to diagnose breast cancer in a timely fashion, or from discussing the results of their findings with others such as health insurance companies, sexual partners or family members of the medical malpractice victims, the medical malpractice defendants themselves, or anyone and everyone in the defendants’ attorneys’ law firms?
The nation’s laws are supposed to protect victims, not victimize them further. As we see it, the proposed changes to Florida’s medical malpractice laws would unfairly, inequitably, and unjustly protect and benefit a special class of people (medical malpractice defendants) at the expense of the enormous harm and detriment to innocent victims of medical malpractice.
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