Challenge to medical liability law could complicate pre-suit process

By American Medical Association Florida, National, News Source

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  • August 2, 2016

A medical liability case, even if successful, can cause financial, emotional and reputational harm to a physician—and also to the patient who brings the suit. A 2013 amendment to the Florida Medical Liability Act, which requires the plaintiff to release relevant health information to determine whether a claim for medical liability is meritorious, is under threat in the Florida Supreme Court.

At stake in Weaver v. Myers is whether the Florida Medical Malpractice Act, which requires the plaintiff to authorize the release of otherwise confidential health information as a condition of bringing a lawsuit for medical liability, is valid. Both a trial court and the Florida First District Court of Appeals confirmed the amendment’s validity.

Florida’s pre-suit investigation process was intended to allow both claimants and potential defendants the opportunity to determine whether a medical liability claim has merit and to encourage early resolution of claims between the parties. This process can avoid costly and time-consuming proceedings through a less complicated pre-suit process that allows both parties to examine the evidence.

What happened

Emma Weaver, widow and representative of Thomas C. Weaver, sued her late husband’s physician, Stephen C. Myers, MD, for medical liability. However, she did not want to allow Dr. Myers’ attorneys to interview the other physicians who had treated her deceased husband. She asserted that the Florida constitution and a regulation promulgated under the Health Insurance Portability and Accountability Act (HIPAA) to protect patient privacy invalidated the Florida Medical Malpractice Act.

When a case goes into suit, the Rules of Civil Procedure allow parties to have a fair chance to fully explore their opponents’ medical condition when that condition has been placed at issue. For example, a defendant may even require the plaintiff to sit for a compulsory medical examination by another physician of their choosing.

The Florida Medical Malpractice Act was passed in response to a common complaint from advocates and clients on both sides: Medical liability lawsuits take too long to be brought to resolution. The intent of the act was to reduce the cumbersome and expensive process of discovery. A formal deposition can disrupt the physician practice and displace patients in that physician’s schedule.

“The time, expense and potential asymmetry of information can be cured by allowing the current law to stand,” said the Litigation Center of the AMA and State Medical Societies in an amicus brief. “A phone call between defense counsel and the treating physician can serve to facilitate the same information that would be revealed during a formal deposition.”

Allowing the claimant to withhold key information unfairly prejudices potential defendants and circumvents the goals of the pre-suit investigation process.

“If the right to this informal discovery is removed,” the brief said, “the result will be to return to an uneven playing field and the inability to avoid cumbersome and costly formal discovery.”