Change in Florida’s malpractice law backed by Court

On July 21, 2015, the 1^st District Court of Appeals in Florida ruled over the disputed issue of legal constitutionality of changes which were brought in Florida’s malpractice law. The Senate Bill 1792 that was passed in senate on April 11, 2013 and respectively in House on May 1, 2013 by Governor Rick Scott changes the requirements of expert witnesses, and enables attorneys to question patients' subsequent healthcare providers.

The controversy over the constitutionality stems from the challenge made in 2013 over the said law being contrary to right to privacy provided in the Florida Constitution. Also, concerns were raised as to whether the 2013 changes violated the federal Health Insurance Portability and Accountability Act (HIPAA) which limits access to personal medical information and its disclosure except in certain circumstances. In Weaver v. Myers 40 Fla. L. Weekly D 1676 (2015), the Court of Appeal affirmed with the 2014 ruling of Eleventh Circuit[1] which upheld the ex-parte change in a ruling.

The Court decided that the ex-parte change does not violate the right to privacy in medical-malpractice cases. Actually the 2013 law requires patients to execute a form that authorizes such communications prior to filing malpractice claims. The question of waiver arises for the reason that under the legal term, “ex parte communications”, a defense attorney who represents the physician is able to question regarding the health information of the patient. Moreover, such personal information can be discovered from other medical providers who treated the patient, and disclosure could happen without the patient’s attorney being present.

In ruling so, Judge James Wolf opined that- “It is well-established in Florida and across the country that any privacy rights that might attach to a claimant’s medical information are waived once that information is placed at issue by filing a medical malpractice claim.”

The Court of Appeals in further deciding as to whether the ex-parte communications law violated the constitutional separation of powers, decided that the law is not procedural but “integral to the substantive pre-suit notice statute” involved in filing medical malpractice lawsuits.