Florida Considers Medical Malpractice Revamp, Raising Privacy Concerns

February 14, 2012

1342025_medical_equipment.jpgSunshine State lawmakers are set to consider a proposed law intended to limit Florida medical malpractice lawsuits by raising the standard of proof in certain cases and allowing defendants to have unfettered access to a plaintiff's treating doctors.

The Associated Press' Gary Fineout reports that "[t]his effort is being criticized as an attack on the privacy rights of patients and comes at a time when fewer medical malpractice claims are being filed, according to state regulators."

Sponsored by Rep. Matt Gaetz (R-Fort Walton Beach), House Bill 385 provides that a doctor is not liable for malpractice for failing to order or perform a diagnostic exam, unless the doctor also failed to act "in good faith," as proved by the plaintiff based on "clear and convincing evidence." It also allow a potential medical malpractice defendant - a person seeking to sue for medical malpractice must notify the defendant before filing suit - to interview the plaintiff's treating doctors without the plaintiff or his or her attorney present.

Undeterred by the difficult standard of proof that the proposed law would enact for certain medical malpractice plaintiffs, Gaetz told the AP flatly that sometimes there are simply "bad outcomes" in medicine. He also overlooked the significant privacy implications of allowing a doctor to talk to a third person about a patient's condition and treatment without the patient or a representative present.

Section 456.057(7)(a)(3), Florida Statutes (2010) requires that a health care practitioner obtain a patient's written authorization before discussing the person's medical records with a third party. The law provides an exception, however, "[i]n any civil or criminal action . . . upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records." ยง 456.057(7)(a)(3).

Fineout notes that "Florida already has a very complicated process for medical malpractice lawsuits that requires a patient to submit a statement from a medical expert backing up a negligence claim," as a result of which malpractice claims dropped in 2010 from the previous year.

As South Florida medical malpractice attorneys with years of experience representing clients throughout area who have been seriously injured by doctor's mistakes, we are disheartened by the idea that some of these will be chalked up as simply a "bad outcome." A person who seeks medical care expects that care to improve his or her condition, not worsen it.

As the AP story makes clear, Florida medical malpractice law is increasingly complex, often including litigation, conflicting expert witness testimony and tense negotiations with doctor insurance companies. An experienced medical malpractice lawyer is vital to pursuing a claim in the event that a medical error causes injury. If you or a loved one was injured by poor medical care, contact the South Florida medical malpractice attorneys at Anidjar & Levine. We represent clients throughout the area - including in Pompano Beach, Coral Springs and Boca Raton - and offer a free initial consultation from our Fort Lauderdale offices, so call the firm today at (800) 747-FREE.

Related blog posts:

Florida Court Explains Medical Malpractice Notification Requirement - Galencare, Inc. v. Mosely
Can Florida Personal Injury Plaintiffs Examine Insurance Company Doctors' Records? USAA v. Callery

Florida Court Explains Nursing Home Negligence Law - Gilmore v. Life Care Centers of America, Inc.