Florida
Medical Association Fact
Sheet
EQUAL ACCESS TO MEDICAL WITNESSES
FMA Contact: Jeff Scott
FMA Position
The FMA supports modifying section 456.057, Florida Statutes, permitting defense
attorneys to speak with the plaintiffs treating physicians in medical malpractice actions
without requiring the use of the formal discoveryprocess.
Background
In 1988, the Florida Legislature amended the medical records statute (456.057 , F
.8.,) to provide for confidentiality of certain patient records and communications.
Medical malpractice actions, however, were exempted from the confidentiality provisions
since in these cases the plaintiff places his or her condition in controversy.
Unfortunately, the Supreme Court has held that the language chosen to create the medical
malpractice exemption did not achieve its objective. Therefore, under the current law even
after a plaintiff has placed his or her condition and treatment at issue by filing a
notice of intent to sue, a defense attorney does not have the right to speak with the
plaintiffs treating physicians without going through the formal discovery process (i.e.,
subpoena and deposition).
Discussion
When the Legislature amended the medical records confidentiality statute, it included
language designed to exempt medical malpractice actions. Instead, this language has been
given an extremely limited interpretation. While the plaintiffs attorney is free to
discuss the plaintiffs medical condition and treatment with every physician the plaintiff
has ever seen, the defendant's attorney is prohibited from doing likewise. Rather,
defendants and defense attorneys must resort to the formal discovery process each time
they wish to speak with a treating physician. This adds both time and expense to the
litigation process and creates an inherent unfairness.
To rectify this problem, this legislation proposes those defendants and their attorneys
are afforded the same opportunity as the plaintiff -to converse alone with the plaintiffs
treating physicians; The defense, however, is limited in their inquiry to opinions the
treating physicians may have formed concerning the care provided by the defendant and
other physicians, issues concerning causation, and the physical status of the plaintiff.
Exempt from disclosure are conversations or communications the plaintiff had with the
physician. This provides an appropriate balance between protecting a patient's
expectations of privacy, and preventing the defendant from defending the case at a
distinct disadvantage.
Conclusion
This legislation would more closely reflect the Legislature's original intent. It
would recognize that when a patient sues a physician or other health care provider, the
patient gives up the right to absolute confidentiality concerning his or her medical
information. This amendment would allow attorneys to confer with treating physicians on an
informal basis early in the litigation process and would promote rapid and less expensive
resolutions of malpractice claims. Furthermore, it would eliminate the unfairness in the
present system and would create a level playing field for both parties during the
course of the litigation. Most importantly, these changes would not destroy physician-
patient confidentiality.
02/09/01
PO Box 10269, Tallahassee,
FL.32302-2269 Telephone 1-850-224-6496/1-800-762-0233 |
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