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Patient Privacy: Medical Malpractice in Florida

Recently, a Florida appellate court made a decision that affects the transparency of a medical malpractice case to the detriment of patients, some say. The case focused on a law that permits “ex parte” communications during medical malpractice cases. Ex parte literally means “on or from one party,” or “without notice or argument from the adverse party.” These types of communications are barred in most legal proceedings to ensure fairness between the adversarial parties and the fact-finders, and to ensure that parties have access to all of the information they are entitled to about their adversaries.

Ex Parte Communications in Medical Malpractice Cases

In medical malpractice cases, however, the Florida law allows physicians’ attorneys to access the patient at issue’s medical records ex parte. This also allows attorneys access to previous treating doctors’ medical records. These disclosures take place without first being seen by the patient or the patient’s attorney, making this a controversial act to some.

The judge that originally heard this case in the lower court thought that these rules could be a violation of HIPAA, the Health Insurance Portability and Accountability Act. HIPAA ensures that a patient’s privacy is protected and requires explicit authorization before files can be duplicated, distributed, or viewed by others. The Florida appellate court ultimately determined that this practice of ex parte communication is permissible in these limited circumstances. This is largely due to the fact that patients bringing medical malpractice claims are required by law to sign a waiver before they can pursue such medical negligence claims. The patient, essentially, is consenting to the release of their information to the doctor’s attorney in exchange for the possibility of receiving damages due to the medical negligence of the physician at issue.

Moreover, as Judge Frank Hull noted, the individual patients retain their choice “whether to file suit, and therefore whether to sign the authorization form” and allow their medical history to be discovered by opposing parties. It is, what some would consider, a “Hobson’s choice,” given the fact that you do not really have a choice but to sign the authorization form if you wish to bring suit at all. Regardless of one’s personal opinion, the court has spoken on theirs, and patients bringing medical malpractice claims will still need to sign an authorization form in order to bring a claim.

Florida Medical Malpractice

Medical malpractice is an area of the law in which patients that were injured, or the families of patients that were killed, due to a doctor’s negligence are given some peace to rectify the harm caused. Florida law allows for nearly unqualified access to relevant patient records, both a benefit and a burden from any angle you look at it. The patient may be burdened as potentially private, sensitive information is accessible, but benefited to sustain their claim of medical malpractice against their provider with documentation of incidents through the records. Regardless, a physician’s office is somewhere people go to feel better, not to get hurt. Our experienced medical malpractice attorneys at Alan Goldfarb, P.A. have the knowledge and expertise necessary to navigate a medical malpractice claim in Florida. Even if you simply have questions about your rights as a patient, please do not hesitate to contact our offices for a complimentary consultation today.

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