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Avoiding Med Mal Land Mines: Protecting Your Client’s Right to Keep Medical Communications Confidential

By statute passed in last year’s legislative session, plaintiffs in medical malpractice cases are required to provide the defendants an authorization form allowing the defendant to obtain “health information” relating to the plaintiff. With a signed form, the defendant can obtain medical records in order to evaluate the issues in the case. The statute requires a specific form, crafted by the legislature, for the plaintiff to use. The form has broad language, stating that the “health information” plaintiff authorizes “extends to, and includes, the verbal as well as the written.” This language might lead a defendant or his attorney to engage in ex parte conversations with the plaintiff’s treating physicians. This language, interpreted in that manner, violates the patient confidentiality provisions of Florida Statutes section 456.057(7)(a) prohibiting such ex parte communications. So how do you protect your client’s rights in this scenario?

In order to avoid this outcome, and to adhere to Florida law, the better practice is to include strong and direct language in the Notice of Intent letter advising that the attached authorization form does not permit ex parte communications and conversations with other health care providers. Also, we strongly recommend attaching an addendum or a memorandum to the authorization form with the following language:

  • As required by Florida Statute § 766.1065, enclosed is the mandatory authorization for release of protected health information in the form prescribed by the statute. The enclosed authorization is provided to allow you to obtain written medical records as described therein. Immediately upon receipt of any records obtained using this authorization, you are directed to provide the undersigned with complete copies. Failure to timely provide the records may result in sanctions against you as provided in Florida Statute § 766.106(7). This authorization does not include any form of oral or ex parte communications, including, but not limited to, any verbal dialogue, written report, letter, e-mail, or any other type of interaction with the health care providers identified in the authorization. The enabling law that implemented this statute initially included “ex parte interviews” with treating health care providers that was specifically deleted from the final bill by amendment that occurred during a Senate floor debate that took place on May 2, 2011. Accordingly, do not engage in any communications with the health care providers other than to obtain the authorized written records, copies of which are to be provided immediately to the undersigned, or sanctions may be sought against you as provided in Florida Statute § 766.106(7) and disqualification of counsel.
  • As set forth in the Authorization, we have made a good faith effort to identify all known health care providers by category based upon information available at present. We are continuing to investigate this matter and if we learn of any additional health care providers or any information that may change a provider’s category, we will provide you an updated authorization. Please inform me immediately if you have any disagreement with the providers and the categories to which they have been assigned or if you learn of any additional health care providers who may have been involved with Mr./Ms. __________’s medical care and treatment. We will examine all information provided by you and respond accordingly. If we do not receive a response to the contrary from you, we will assume that the information as provided in the Authorization is correct and acceptable to you for the purpose intended.

As with many aspects of Florida’s medical malpractice statutes, section 766.1065 contains pitfalls for the uninitiated practitioner. The improprieties and chances for corruption if a prospective defendant or his attorney were to discuss the case with your client’s other treating health care providers are easy to imagine. Before commencing a medical malpractice case, be certain you have thoroughly reviewed Florida Statutes Chapter 766 and/or have consulted with an experienced and trusted Florida medical malpractice attorney.