Florida’s New Medical Malpractice Law Spurs Legal Challenges Days Hours After Taking Effect

On July 1, 2013, Senate Bill No. 1792, codified in Florida Compiled Statutes at Ch. 2013-108, went into effect, and, within hours, spurred several legal challenges by Florida trial attorneys. The law allows physicians and defense attorneys to interview a physician regarding his or her patient’s treatment during the fact-finding period of a potential lawsuit without the patient’s presence, consent or knowledge. The statute also requires that any expert witness that testifies in medical liability must practice the same specialty as the defendant’s physician.
Physicians, hospitals, and other medical professionals owe their patients a duty to act with a certain level of care generally accepted within the medical industry. When medical professionals fail to satisfy this duty, the resulting negligence may result in liability for medical malpractice. As this blog has discussed before, between 1990 and 2010, nearly 10,000 medical malpractice judgments were paid out totaling $1.3 billion. In the cases underlying those judgments, death occurred in 6.6% of patients, permanent injury in 32.9%, and temporary injury in 59.2%.
The Florida Justice Association (“FJA”), a group comprised of Florida trial attorneys, is leading the challenge to the new law, claiming that it violates state privacy rights and the federal Health Insurance Portability and Accountability Act. According to the lawsuits filed by the FJA, allowing defense attorneys to contact nonparty physicians without patient consent will lead to illegal medical history disclosures. Critics of the law also contend that it will deter the filing of medical malpractice lawsuits for fear personal information will be improperly divulged.
FJA executive director Debra Henley claims, “When no one is present to protect the victim, sensitive medical information may be disclosed, no matter how irrelevant, personal or embarrassing it may be to the patient. What is worse is that the attorney can do whatever he or she wants to with that sensitive information.”
Proponents of the new law argue that it will level the playing field between plaintiffs and defendants in medical malpractice cases. Jeff Scott, general counsel for the Florida Medical Association, an advocate for the measure, complained that, before the law went into effect, plaintiffs’ attorneys had complete access to a patient’s treating physicians during the informal discovery process, while defense attorneys were unfairly left in the dark. Scott argues that, because treating physician are often the key witnesses in medical malpractice cases, “what the legislation does is level the playing field and provide crucial access” to defense attorneys.

Florida law has established the statute of limitations for filing a medical malpractice claim as only two years, making it imperative that the victim of medical malpractice consult an attorney immediately to ensure that his or her right to compensation is preserved.

The medical malpractice attorneys at Gerson and Schwartz, P.A. have extensive experience representing individuals who have been injured as the result of the negligence of a medical professional. If you or someone you know has been injured by the negligence a medical professional, conus a Miami accident attorneys at Gerson and Schwartz, P.A. today.

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