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Changes in Medical Malpractice Laws May Make Suits More Difficult

By Saunders Law Group on September 08, 2014

On July 1, 2013, SB 1792 became law. SB 1792 is significant because it makes medical malpractice lawsuits more difficult to pursue. The law has three main components. First, the law clarified a question in response to a 2012 case that questioned whether or not a health care practitioner or provider could consult with an attorney before serving as a witness in a medical negligence action: yes, a healthcare practitioner or provider may indeed consult with an attorney before serving as a witness in a medical negligence action. During that consultation, the practitioner or provider may disclose to his attorney information disclosed by a patient as well as any medical records pertinent to the case.

Second, the bill limits the class of individuals who may offer expert testimony in medical negligence actions against specialists. Previously, the requirements for expert witnesses stated that the witness must be a health care provider who practiced in a “same or similar” specialty. Now, these experts must specialize in the same exact medical specialty as the defendant. Since the bill limits the class of individuals who may offer expert testimony, plaintiffs have fewer doctors from which to choose, and among that now-limited pool, those doctors may be reluctant to testify against their peers.

Finally, the law revised the pre-suit discovery procedures formerly in place for investigation of medical negligence claims. Previously, a prospective defending doctor could not interview the claimant’s treating health care providers without the claimant’s consent. Now, however, within 15 days of receiving a request from a defending doctor, the claimant’s attorney is actually responsible for arranging an interview between the doctor and the claimant’s treatment health care providers without any requirement that the plaintiff or plaintiff’s attorney even be present. If the claimant’s attorney fails to schedule the interview, the prospective defending doctor can go ahead and interview the claimant’s treating health care providers without even giving notice to the claimant! However, there is nothing in the law that actually requires any health care providers to submit to an interview.

While these changes in medical malpractice laws make medical malpractice claims more difficult to pursue and more challenging to win, there have already been challenges to the law. In fact, five lawsuits were filed within hours of the law taking effect. Just recently, a federal judge in the Northern District of Florida ruled that one of the pre-suit requirements is contrary to federal law and expressly preempted by the Health Insurance Portability and Accountability Act (“HIPAA”). The specific issue the Court ruled on was whether a state statute could require a patient, as a condition precedent to pursuing a medical negligence claim, to sign an authorization allowing the potential defendant to conduct interviews without the patient or patient’s attorney with the patient’s other health care providers (as discussed above). Judge Hinkle ruled that HIPAA indeed preempted state law, and, as a result, this law was expressly preempted. Murphy v. Dulay, 975 F.Supp 2d 1200 (2013).

While the changes in the law are frustrating attempts by lobbyists to limit medical malpractice suits, Judge Hinkle’s ruling is a step in the right direction. If you or one you love is a victim of medical malpractice, contact our attorneys today.

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