April 8, 2013

162017_132140396847214_292624_nOn April 2, 2013, the Florida Senate Rules Committee voted in favor of Florida Senate Bill 1792 (SB 1792), which would change Florida’s medical malpractice law to be more slanted in favor of negligent Florida doctors and would further harm Florida medical malpractice victims.

How Does SB 1792 Help Negligent Doctors In Florida And How Does It Harm Medical Malpractice Victims In Florida?

The Senate Rules Committee stated that SB 1792 revises the laws relating to ex parte communications (communications in which neither the patient nor his/her lawyer is present or involved) to allow a health care provider for the victim who “may” be called as a witness in a medical negligence lawsuit to secretly consult with the defendant’s attorney during which the health care provider may discuss information disclosed by a patient or contained in the patient’s records created during the course of care or treatment of the patient.

Furthermore, if the medical malpractice insurer for the health care provider also represents one or more medical malpractice defendants or prospective defendants in the medical malpractice lawsuit, the insurer may even recommend attorneys to the health care provider other than the attorney representing the defendant or a prospective defendant.


SB 1792 adds to 766.106, Florida Statutes, as follows [addition is in italics] : Notice before filing action for medical negligence; presuit screening period; offers for admission of liability and for arbitration; informal discovery; review. – (6) INFORMAL DISCOVERY.— (b) Informal discovery may be used by a party to obtain unsworn statements, the production of documents or things, and physical and mental examinations, as follows: 5. Ex parte interviews of treating health care providers.—A prospective defendant or his or her legal representative may interview the claimant’s treating health care providers without notice to, or the presence of, the claimant or the claimant’s legal representative.


So, for example, if the medical malpractice victim sues her orthopedic surgeon for negligently causing a permanent hip injury as a result of poorly performed hip surgery, the victim’s primary care physician can secretly and without the victim’s knowledge or consent discuss and disclose to an insurance company lawyer the victim’s unrelated gynecological issues treated by the primary care physician, the victim’s unrelated mental health issues (such as depression and anxiety) treated by the primary care physician, the victim’s unrelated sexual history — anything for which the primary care physician treated the patient or was just mentioned in the victim’s medical records.

SB 1792 further harms victims of medical malpractice in Florida by limiting the class of experts who may provide expert testimony on their behalf against defendant medical malpractice specialists by requiring that the victims’ experts must specialize in the same rather than similar medical specialty as the defendant. Presently, Florida medical malpractice law provides that if the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must: 1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients. SB 1792 removes the language, “or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients” and thereby makes it much more difficult, and much more expensive, for victims of medical malpractice to retain qualified experts to testify on their behalf.

What is happening to patients’ privacy rights in Florida? It use to be that patients were entitled to and expected that their medical records were private and privileged, not subject to disclosure except under certain limited circumstances. Now, Florida lawmakers are not only attempting to vastly expand the allowance of disclosure of patients’ medical records in Florida that had previously been sacrosanct but they are also turning medical records privacy on its head by allowing patients’ treating health care providers to discuss and disclose their patients’ private and sensitive medical records with others without any notice whatsoever to the patients before the disclosures are made and without the patients or their lawyers being present when the disclosures are made.

Is this what the voters in Florida had in mind when they elected their lawmakers —  for a few powerful and wealthy constituents (health care providers such as physicians) to be able to subvert  the judicial system to their advantage at the expense of and to the disadvantage and harm of ordinary people?

If you or a loved one have been victimized by medical malpractice in Florida or in another U.S. state, you should promptly consult with a Florida medical malpractice attorney or a medical malpractice attorney in your state who may assist you by investigating your medical malpractice claim for you and filing a medical malpractice case on your behalf, if appropriate.

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