Does Doctor-Patient Privilege Apply to My Malpractice Case?

Posted on April 22, 2021 by Shapiro Law Group


On October 10, a federal appeals court upheld a controversial aspect of Florida’s medical malpractice law regarding ex-parte communications.

What Are Ex-Parte Communications?

Ex-parte communications refers to any decisions or consultations made by one party without the other party present. Florida’s medical malpractice law currently requires plaintiffs to sign a form before they file a lawsuit, allowing the defendant (usually a doctor, hospital or insurance company) to engage in ex-parte communications.

Those who oppose the provision say it “tramples” doctor-patient confidentiality, and allows irrelevant and deceptive information to be introduced at trial.

For example, if a doctor is accused of medical malpractice, his attorney could obtain personal medical information from the plaintiff’s other doctors without the victim or their attorney present. The doctor could then use that information to make a case about the victim’s health outside of the alleged malpractice.

Supporters of the law argue that the plaintiff already has access to the information, so allowing the defense to access it is only fair. They also argue that the information could help defense attorneys decide whether to settle a malpractice case or go to trial.

In 2013, U.S. District Court Judge Robert Hinkle threw out the provision, arguing that it would lead to violations of the federal Health Insurance Portability and Accountability Act (HIPAA). HIPAA prohibits the disclosure of personal medical information outside of very specific circumstances.

However, a federal appeals court overturned the lower court’s decision earlier this month. In the appeals court’s opinion “individual[s] retain the choice whether to file suit, and therefore whether to sign the authorization form.”

Florida Medical Malpractice Attorney

Medical malpractice laws can be complicated, and the rules are constantly evolving. If medical negligence caused your injuries, you need an attorney on your side who knows how to fight for you.

Shapiro Law Group has more than 30 years of experience helping medical malpractice victims. If you need advice about your legal options, give us a call today to schedule a free consultation.

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