Attorneys from around the state today joined together to file legal challenges to the constitutionality of “ex parte communications” authorized by Florida Senate Bill 1792. The complaints claim the new law is a violation of the right to privacy as guaranteed by the Florida Constitution. The complaints also allege the law is a violation of the federal Health Insurance Portability and Accountability Act (HIPAA).
On June 5, 2013, Florida Governor Rick Scott signed into law Senate Bill 1792, which allows for “ex parte communications” in medical negligence cases. Ex parte communications are private conversations about a patient’s medical condition between defense attorneys and a patient’s nonparty, treating physician without the patient or the patient’s attorney present. The law becomes effective today.
“With everything that is happening in the federal government right now involving the invasion of privacy of U.S. Citizens by their government, it is appalling to know that in Florida, our Legislature and governor have authorized doctors to divulge their patients’ personal, private medical history to complete strangers,” said Debra Henley, executive director of the Florida Justice Association. “On a week where our country celebrates all of the rights and liberties we hold dear as citizens, it is disheartening to know that our right to privacy no longer appears to be one of them.”
Opponents of the law are concerned that allowing lawyers to engage in ex parte communications will cause patients to withhold vital information from their doctors that could prevent effective treatment. Another concern is that such communications could lead to malpractice insurers, represented by the attorney, using those communications to threaten or intimidate the doctor from testifying in a medical negligence case or the victim from filing the case in the first place.
“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,” explained Henley. “What is worse is that the attorney can do whatever he or she wants to with that sensitive information.”
Three federal and two state complaints were filed today:
Dana Brooks, of Eubanks, Barrett, Fasig & Brooks in Tallahassee, filed a federal complaint in the United States District Court in the Northern District of Florida.
Neal Roth, of Grossman Roth, P.A. in Coral Gables, filed a federal complaint in the United States District Court in the Southern District of Florida. (Miami).
Sean Domnick, of Domnick & Shevin, P.L. in Palm Beach Gardens, filed a federal complaint in the United States District Court in the Southern District of Florida. (Palm Beach).
Ken Sobel, of Freedland Harwin, P.L. in Ft. Lauderdale filed a state complaint in the Circuit Court of the 17th Judicial Circuit (Broward).
Virginia Buchanan, of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola, filed a state complaint in the Circuit Court of the First Judicial Circuit (Escambia).