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Do You Waive Your Right to Privacy When Filing a Medical Malpractice Suit?


In 2013, a Republican-controlled Florida legislature passed a law that allowed ex parte communications between those defending doctors in medical malpractice lawsuits and their current health care providers. Those opposed to the law claimed that it unnecessarily breached patient privacy. Essentially, the law imposed the necessity on any plaintiff who brought a medical malpractice lawsuit against a doctor or hospital from disseminating information on their current health status and allowing contact between their own doctors and the defendant’s attorneys.

The law stated that patients must waive their right to medical privacy if they want to pursue a medical malpractice lawsuit against a doctor or hospital in the State of Florida. Since the information is “ex parte”, the personal medical information could be disclosed without either a judge or the injured patient’s attorney present.

The law did not go unchallenged and an appeals court was forced to rule on the constitutionality of the law.

The Plaintiff’s Argument 

The plaintiff’s complaint argued that it violated five key constitutional considerations. Those were:

  • Violation of the separation of powers
  • Violation of the constitutional limitation of special legislation
  • Constitutional guarantee of free access to the courts
  • Violation of the right to privacy
  • Violation of HIPAA

The Defendant’s Argument 

The defendants argued that any plaintiff in a medical malpractice lawsuit must disclose information pertinent to the case. They argued that a malpractice lawsuit represents a major threat to a physician’s reputation, career, a serious financial burden. They further argued that any privacy considerations that were present were trumped by the defendant’s right to defend himself against the plaintiff and that complications posed by the privacy laws prevented a defendant from mounting an adequate defense.

The Court Agrees with the Defendants 

The appellate court in which the case was heard found in favor of the defendants. Indeed, plaintiffs did forfeit certain rights to privacy if they wanted to pursue a medical malpractice lawsuit against a doctor. Both state and federal courts upheld the law based on the necessity of allowing the defendant a means of defending themselves.

The question that remains, however, is: How would preventing such communications from being ex-parte impinge the defense’s capacity to put forth an adequate defense? That remains a fundamental bone of contention between those who file lawsuits on behalf of injured patients and those who defend those targeted in such lawsuits.

What Does this Mean for Those Filing Malpractice Lawsuits? 

The fear is that this can be used as a way to intimidate plaintiffs from filing medical malpractice lawsuits. Indeed, those who intend to file a medical malpractice lawsuit will be expected to allow defense counsel access to their current doctors, medical records, and perhaps other sensitive information that may or may not be of value to the case.

Need to File a Medical Malpractice Lawsuit? 

The St. Petersburg medical malpractice attorney at Masterson & Hoag, P.A. have successfully litigated a number of medical malpractice lawsuits for our clients. If you have been injured by a doctor’s or hospital’s negligence, please contact us for a free consultation.



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