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Florida Appeals Court Upholds Ex Parte Communications Law

Last month, a Florida appeals court upheld a Florida law which requires medical malpractice plaintiffs to authorize ex parte communications between the health care provider’s lawyer and the plaintiff’s other doctors who are not parties to the lawsuit. To protect health care providers against frivolous lawsuits, many states have enacted some sort of tort reform for medical malpractice liability. North Carolina is no exception to this trend. In 2011, the North Carolina legislature enacted tort reform for medical liability. Part of this tort reform limited the amount of damages a plaintiff can receive for noneconomic damages to $500,000. G.S. 90-21.19(a) contains the relevant statute and states that

Except as otherwise provided in subsection (b) of this section, in any medical malpractice action in which the plaintiff is entitled to an award of noneconomic damages, the total amount of noneconomic damages for which judgment is entered against all defendants shall not exceed five hundred thousand dollars ($500,000). Judgment shall not be entered against any defendant for noneconomic damages in excess of five hundred thousand dollars ($500,000) for all claims brought by all parties arising out of the same professional services. On January 1 of every third year, beginning with January 1, 2014, the Administrative Office of the Courts shall reset the limitation on damages for noneconomic loss set forth in this subsection to be equal to five hundred thousand dollars ($500,000) times the ratio of the Consumer Price Index for November of the prior year to the Consumer Price Index for November 2011. The Administrative Office of the Courts shall inform the Revisor of Statutes of the reset limitation. The Revisor of Statutes shall publish this reset limitation as an editor's note to this section. In the event that any verdict or award of noneconomic damages stated pursuant to G.S. 90-21.19B exceeds these limits, the court shall modify the judgment as necessary to conform to the requirements of this subsection.

The North Carolina tort reform doesn’t limit the amount that a plaintiff can receive for medical bills but for “noneconomic damages,” which G.S. 20-19(c)(2) defines as “Damages to compensate for pain, suffering, emotional distress, loss of consortium, inconvenience, and any other nonpecuniary compensatory damage. "Noneconomic damages" does not include punitive damages as defined in G.S. 1D-5.” Subsection (3) defines “same professional services” as “The transactions, occurrences, or series of transactions or occurrences alleged to have caused injury to the health care provider's patient.”

There is an exception to this cap on noneconomic damages. G.S. 90-21.19(b) states that

Notwithstanding subsection (a) of this section, there shall be no limit on the amount of noneconomic damages for which judgment may be entered against a defendant if the trier of fact finds both of the following:

(1)    The plaintiff suffered disfigurement, loss of use of part of the body, permanent injury or death.

(2)    The defendant's acts or failures, which are the proximate cause of the plaintiff's injuries, were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional or with malice.

Some courts in other states have held that caps on damages in medical malpractice suits are unconstitutional. For example, earlier this year, the Missouri legislature instituted its second medical malpractice damages cap after a 2005 decision from the Missouri supreme court that declared the earlier damages cap unconstitutional as a violation of a plaintiff’s right to a trial by jury.

As medical malpractice reform has changed, states have looked to additional measures to protect the interests of health care providers in defending medical malpractice claims. In 2013, the Florida legislature enacted a law which requires medical malpractice plaintiffs to authorize ex parte communications between the health care provider’s lawyer and the plaintiff’s other doctors who are not parties to the lawsuit. Ex parte communications are communications between a party or a party’s representative and another person without the presence of the adverse party.

Last month, a Florida appeals court upheld this law in the case Weaver v. Myers LLC. In Weaver, the representative of the deceased patient brought a medical malpractice lawsuit against a treating health care provider. The plaintiff argued that the Florida statute authorizing ex parte communications was unconstitutional based on the separation of powers doctrine because the informal discovery change conflicted with the Florida civil procedure rules. The Florida appeals court rejected this argument, concluding that the law is “not procedural, as alleged by appellant, but rather [is] integral to the substantive presuit notice statute” and therefore “the statutory amendments to the medical malpractice presuit notice statute do not intrude upon the supreme court's procedural rule-making power because they are integral to other substantive portions of the statute, and they do not conflict with” the applicable civil procedure rule.

The plaintiff also argued that the law violated the decedent’s right to privacy under the Florida constitution. The court disagreed with this argument, noting that “[i]t is well-established in Florida and across the country that any privacy rights that might attach to a claimant's medical information are waived once that information is placed at issue by filing a medical malpractice claim.” Therefore, when the plaintiff filed the medical malpractice claim, the decedent’s medical condition was at issue.

Finally, the plaintiff argued that the law violated HIPAA. The court also disagreed with this argument, citing a decision from the 11th Circuit last year, which held that the ex parte communications law did not violated HIPAA.

If you have been injured by an act of medical malpractice, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.

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