Medical liability reform quick to trigger legal challenges

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  • July 14, 2013
  • Hours after the measure took effect, trial attorneys filed five lawsuits. Physicians say the statute provides stronger legal protections for defendant doctors.

A new Florida law aimed at improving the legal climate for physicians already is the subject of litigation by plaintiffs’ attorneys.

The statute, which went into effect July 1, allows doctors and defense attorneys to speak with other treating physicians about a patient’s treatment during the fact-finding period of a potential lawsuit. Another provision of the law requires expert witnesses who testify in medical liability cases to practice in the same specialty as defendant doctors. Previously, experts needed only to practice in a similar specialty.

Hours after the law took effect, trial attorneys filed five constitutional challenges in state and federal courts.

The Florida Medical Assn., which advocated for the law, is not surprised by the lawsuits and plans to aggressively defend the legislation in court, said Jeff Scott, FMA general counsel.

“We will certainly do whatever we can to make sure this law survives whatever the trial bar throws at it,” he said in an email.

The Florida Justice Assn., which spearheaded the lawsuits, said the statute violates state privacy rights and the federal Health Insurance Portability and Accountability Act. Contact between defense attorneys and nonparty physicians — without the patient or the patient’s attorney present — will lead to illegal medical history disclosures, the association said in a statement.

“When no one is present to protect the victim, sensitive medical information may be disclosed, no matter how irrelevant, personal or embarrassing it may be to the patient,” said Debra Henley, executive director of the Florida Justice Assn. “What is worse is that the attorney can do whatever he or she wants to with that sensitive information.”

At this article’s deadline, the Florida attorney general’s office had not returned messages seeking comment.

Approval from judges

So far in 2013, courts have shown support for tort reforms.

In June, a federal judge upheld Mississippi’s $500,000 noneconomic damages cap in medical liability cases. The ruling affirmed the reduction of a $5.5 million court award against a medical center in a wrongful death case.

In May, Georgia Gov. Nathan Deal signed a law that prevents health law reform metrics from being used as evidence in liability cases. Georgia’s law states that payer guidelines and quality criteria under federal law shall not establish a legal basis for negligence or a standard of care for the purposes of determining medical liability.

The Florida law is the result of two decades of lobbying efforts by physicians to enact stronger legal protections for doctors, Scott said. The American Medical Association in April wrote a letter to lawmakers in support of the legislation.

Before the new law, Scott said plaintiffs’ attorneys had unfettered access to a patient’s treating physicians during the informal discovery process, while medical liability defense attorneys were prohibited from contacting them.

“The treating physician is often the key witness in a malpractice case,” Scott said. “What our legislation does is level the playing field and provide crucial access” to defense attorneys.

The law will have a chilling effect on the free flow of information between physicians and patients, said Kenneth J. Sobel, a plaintiffs’ attorney who filed one of the lawsuits against the legislation. Patients will be less likely to disclose personal information to treating physicians if they know such details could be released during a potential lawsuit against another doctor, he said.

“Federal law holds the patient privacy protection afforded by HIPAA to be paramount to any state law that contravenes” keeping patient communications private, he said. “We’re not saying that the information can’t be discovered. We’re saying the method of discovering can’t be sneaky, off-the-record conversations with physicians.”