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Ex Parte Communications With a Med Mal Plaintiff’s Treating Physicians: Not Happening in Florida

The Florida Supreme Court handed down Hasan v. Garvar this week and further solidified the integrity of doctor-patient confidentiality for medical malpractice plaintiffs The case involved a claim of dental malpractice, but its holding applies to treating physicians in all types of medical malpractice cases as it interprets Florida Statutes section 456.057(8). In sum, the Court ruled that no ex parte communications may occur with a treating physician in a medical malpractice action, even if the parties to the ex parte conversation assert that they will discuss only non-privileged information.

In the case, a subsequent treating dentist was insured by the same insurance company as the defendant dentist. The insurance company appointed and paid for an attorney to meet with the subsequent treating dentist. There was no claim against the subsequent treater and all parties understood there would be no such claim made in the future. The insurance company attorney assured the parties that he would not discuss privileged matters with the subsequent treating dentist.

The Fourth DCA ruled that the meeting could go forward.

The Florida Supreme Court, in a 5-2 decision, ruled that the meeting was prohibited. The Court’s opinion recognizes that, despite the assurances, there is no way to insure that once the meeting begins such discussion won’t take place, nor any way to insure against inadvertent disclosures.

The Court stated as follows:

We hold that section 456.057(8) creates a broad and expansive physician patient privilege of confidentiality for the patient’s personal information with only limited, defined exceptions. The privilege prohibits ex parte meetings between nonparty treating physicians and others outside the confidential relationship whether or not they intend to discuss privileged or non-privileged matters without measures to absolutely protect the patient and the privilege.

The Court reversed the 4th DCA’s opinion and slammed the door shut on ex parte communications with treating physicians in medical malpractice cases.

For a copy of the opinion, click here.