Attorneys in Florida challenge constitutionality of new law dealing with patient privacy

Attorneys from around the state joined forces on Monday to file legal challenges on the constitutionality of “ex parte communications” authorized by Florida Senate Bill 1792, according to Ryan Wiggins of Full Contact Strategies.  The complaints allege 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).

In June, 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 became 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,” indicated Debra Henley, executive director of the Florida Justice Association, in a prepared release.  “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 by allowing lawyers to engage in ex parte communications, patients will withhold vital information from their doctors that could prevent effective treatment.  Represented by an attorney, malpractice insurers may also use those communications to threaten or intimidate a doctor from testifying in a medical negligence case or the victim from filing the case in the first place.

“Built into our state Constitution is a prohibition against special laws that favor once class of people over others,” Kenneth J. Sobel, a partner with Freedland Harwin, PL told Examiner.  “If allowed to stand, medical malpractice insurance companies will have a special law that allows them to have secret meetings with a malpractice victim’s doctors.  Car insurance companies don’t have that right, why should malpractice companies be treated special?”

Five separate complaints hit the courts Monday alleging HIPPA violations and challenging the constitutionality of Florida Senate Bill 1792.  They are:

  • 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.
  • 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).
  • 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)
  • 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)
  • Kenneth J. Sobel, of Freedland Harwin, P.L. in Ft. Lauderdale, filed a state complaint in the Circuit Court of the 17th Judicial Circuit (Broward). Sobel is also chair of the Medical Malpractice Challenge Committee and leader of this effort.

 “If laws can be passed which make filing malpractice law suits prohibitively expensive or require victims to check in their privacy rights even before they reach the courthouse steps, victims will be intimidated from filing suit for malpractice or their attorneys will not be able to afford to represent them,” concluded Sobel.  “Lawsuit intimidation is exactly what this law accomplishes and it results in an unconstitutional barrier to accessing our courts.“