In July, a Florida appeals court upheld a 2013 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. Last week, attorneys challenging the law filed a notice of appeal to the state supreme court. Ex parte communications are communications between a party or a party’s representative and another person without the presence of the adverse party. The law permits defense attorneys representing a health care provider being sued for medical malpractice to communicate directly with other doctors treating the plaintiff without the presence of the plaintiff’s attorney. Challengers of the law argue that these communications violate patient privacy rights.
The case in which the Florida appeals court upheld the law was called Weaver v. Myers LLC. In Weaver, the patient died as a result of the alleged medical malpractice and a representative of the patient brought the lawsuit against the treating health care provider. The representative challenged the Florida law, arguing that it was unconstitutional based on the separation of powers doctrine because the informal discovery change conflicted with the Florida civil procedure rules. The appeals court disagreed with this argument, reasoning that the law is “not procedural, as alleged by appellant, but rather [is] integral to the substantive presuit notice statute.” The appeals court concluded that “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 challenged the law as unconstitutional based on the argument that the law violated the decedent’s right to privacy under the Florida constitution. The court also rejected 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.” When the plaintiff filed the medical malpractice suit, the privacy rights were waived with respect to the decedent patient’s medical information.
As a final argument, the plaintiff argued that the law violated HIPAA. The court cited a decision from the 11th Circuit last year, which held that the law allowing ex parte communications did not violated HIPAA. The challengers of the law are now seeking to appeal the appeals court decision to the Florida supreme court.
North Carolina does not have a law permitting ex parte communications in medical malpractice cases. North Carolina statute G.S. 8-53 states that
No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon, and no such information shall be considered public records under G.S. 132-1. Confidential information obtained in medical records shall be furnished only on the authorization of the patient, or if deceased, the executor, administrator, or, in the case of unadministered estates, the next of kin. Any resident or presiding judge in the district, either at the trial or prior thereto, or the Industrial Commission pursuant to law may, subject to G.S. 8-53.6, compel disclosure if in his opinion disclosure is necessary to a proper administration of justice. If the case is in district court the judge shall be a district court judge, and if the case is in superior court the judge shall be a superior court judge.
The North Carolina Supreme Court reasoned in Crist v. Moffatt (1990) that ex parte communications were not permitted because of the “confidential nature of the physician-patient relationship.” The defendant argued that the plaintiff waived the physician-patient privilege by providing copies of her medical records to the defense counsel and testifying at her deposition. The Court acknowledged that the privilege can be waived by a patient’s public disclosure of her medical condition at trial. However, the Court rejected the defendant’s argument that a waiver of the privilege permitted ex parte communications.
In rejecting the defendant’s argument, the Court noted that
Patients expect that physicians will comply with the Hippocratic oath, which states in part: "Whatever, in connection with my professional practice or not in connection with it, I see or hear, in the life of men, which ought not to be spoken abroad, I will not divulge, as reckoning that all such should be kept secret."
The Court further noted that the American Medical Association also supported a health care provider’s duty of confidentiality. The Court quoted cases from other jurisdictions, including a case from the Court of Appeals of Arizona which stated that "[w]e believe the public has a widespread belief that information given to a physician in confidence will not be disclosed to third parties absent legal compulsion, and we further believe that the public has a right to have this expectation realized."
The Court reasoned that “while ex parte interviews may be less expensive and time-consuming than formal discovery and may provide a party some means of equalizing tactical advantage, these interests are insignificant when compared with the patient-plaintiff's interest in maintaining the confidentiality of personal and possibly embarrassing information, irrelevant to the determination of the case being tried.”
Finally, the Court concluded that
In summary, the gravamen of the issue is not whether evidence of plaintiff's medical condition is subject to discovery, but by what methods the evidence may be discovered. We conclude that considerations of patient privacy, the confidential relationship between doctor and patient, the adequacy of formal discovery devices, and the untenable position in which ex parte contacts place the nonparty treating physician supersede defendant's interest in a less expensive and more convenient method of discovery. We thus hold that defense counsel may not interview plaintiff's nonparty treating physicians privately without plaintiff's express consent. Defendant instead must utilize the statutorily recognized methods of discovery enumerated in N.C.G.S. § 1A-1, Rule 26.
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.