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Medical Malpractice! Defense Lawyer Meeting With Your Treating Physicians?

Sept. 15, 2013

Stuart – Port St. Lucie Medical Malpractice Lawyer discusses recent change in Florida medical malpractice law giving defense lawyers’ unbridled access to the patient’s treating physicians.

That’s right. If an injured patient chooses to file a medical malpractice action after July 2013, the defense lawyer can meet with the patient’s doctors without anybody else being present during the meeting. Want to talk about giving up your privacy rights – here it is.

The Florida medical malpractice is an elaborate law that requires a presuit process. Now, when an injured person serves the doctor or hospital with a Notice of Intent to Initiate a Medical Malpractice Action – he has to give the doctor an authorization giving up his privacy rights.

Specifically, one part of the authorization must state:

This authorization expressly allows the persons or class of persons listed in subsections D.2.-4. above to interview the health care providers listed in subsections B.1.-2. above, without the presence of the Patient or the Patient’s attorney.

Can you imagine how this is going to play out? A patient is severely injured because of alleged malpractice. He/she is fixed up by another doctor. She loves her new doctor and doesn’t want to jeopardize the relationship. So the patient did not tell the doctor that she was filing a medical malpractice claim against the first doctor. The patient didn’t want to drag her doctor into the middle of the litigation and didn’t want to change the relationship.

One day, the doctor gets a phone call from a defense lawyer asking for an appointment so he can discuss the patient. The doctor is taken back and asks why? The lawyer tells the doctor – the patient has filed a medical malpractice claim against the first doctor. Imagine what is going in the doctor’s mind:

  • Is the patient going to sue me?

  • Why didn’t the patient tell me what’s going on?

  • I don’t want to get in the middle of a dispute between my patient and colleague.

  • I don’t want to treat the patient any more.

You may be saying to yourself – just don’t provide the authorization!

If the patient doesn’t provide the authorization – the Notice of Intent is invalid. No authorization – no case. Specifically, the law says:

The presuit notice is void if this authorization does not accompany the presuit notice and other materials required by s. 766.106(2)…

The Patient understands that, without exception, the Patient has the right to revoke this authorization in writing. The Patient further understands that the consequence of any such revocation is that the presuit notice under s. 766.106(2), Florida Statutes, is deemed retroactively void from the date of issuance, and any tolling effect that the presuit notice may have had on any applicable statute-of-limitations period is retroactively rendered void.

Why Do I Share This With YOU?

Because knowledge is power. If a patient is planning on filing a medical malpractice action they have to understand that their treating doctors may be injected into the litigation. I’m sure some folks hope this additional hoop – will deter folks with valid claim from pursuing the justice they deserve.

What do you think about a patient having to give up their privacy rights if they choose to file a medical malpractice claim here in Florida?