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Florida Supreme Court Takes up Medical Malpractice Challenge

closeup image of surgical mask, stethoscope, and gloves

A merits of a controversial portion of a Florida medical malpractice law that was signed into in 2013 will now be debated before the state’s highest court after the Florida Supreme Court ruled on April 13 that they would hear arguments regarding “ex parte communications” in such lawsuits.

Defining exactly what ex parte communication means is relatively simple. In layman’s terms, it’s allowing the opposing counsel to speak with someone else without the plaintiff’s lawyer present. Usually, the primary focus with respect to this aspect relates to one lawyer speaking with a judge privately.

However, in this situation, the current law allows attorneys for a defendant in a medical malpractice case to interview pertinent individuals who may be able to undercut a patient’s claim. These can be one of the following:

  • Health care providers who ended up treating the plaintiff for the injuries suffered from the alleged malpractice.
  • Health care professionals who treated the plaintiff within two years of the alleged case of malpractice.

Soon after the legislation was signed nearly three years ago, a legal challenge against it was filed in Escambia County. The case involved a patient who had died and whose care was the basis for the litigation, with a representative of that individual’s estate bringing the lawsuit.

In that case, appeals of the legislation by Emma Gayle Weaver on behalf of the estate of Thomas E. Weaver were rejected by two state appeals courts in each of the last two years. The 2014 ruling indicated that there was no violation of the federal Health Insurance Portability and Accountability Act (HIPAA) in this particular case.

The HIPPA statute is in place to guard the privacy of a patient, though some exceptions are allowed. Those looking to eliminate the ex parte component have stated that it severely undercuts that right.

The reasons offered by those courts for rejecting calls to strike down that provision were connected to the idea that once an individual files a medical malpractice lawsuit, the privacy with regard to their medical information is waived.

Those in favor of not changing the law believe that any attorneys for the plaintiff already have access to such information.

At present, no specific date has been set for the beginning of oral arguments.

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