Legal reform advocates not optimistic in advance of med mal ruling at Florida Supreme Court

By W.J. Kennedy | Dec 21, 2016

TALLAHASSEE - Tort reform advocates in Florida say they expect the state Supreme Court to overturn a 2013 law enacted to “level the playing field” for defendants and their attorneys in medical malpractice cases.

TALLAHASSEE - Tort reform advocates in Florida say they expect the state Supreme Court to overturn a 2013 law enacted to “level the playing field” for defendants and their attorneys in medical malpractice cases.

The case is being decided against the backdrop of the changing complexion of the Supreme Court with Governor Rick Scott on Dec. 16 appointing conservative Alan Lawson to replace the left-leaning Justice James E.C. Perry, who is retiring at the end of the year, and the governor’s commitment, with uncertain authority, to replace three more left leaning justices who face mandatory retirement at the end of 2018.

Regarding the outcome of the case, Jeff Scott, general counsel for the Florida Medical Association said, “Traditionally, this court has ruled 5-2 to overturn tort reform measures.”

The timing of the ruling is uncertain but even if it occurs after the Perry retirement the final outcome is unlikely to change.

In the case, Emma Gayle Weaver v. Stephen C. Myers, M.D., et al., the plaintiff, suing over the death of her husband, argued that the 2013 law is a violation of the court’s authority to set rules for attorney-client relationships, and it breaches doctor-patient privacy under HIPPA.

But attorney Mark K. Delegal, in the Tallahassee office of Holland & Knight LLP, who with the Florida Justice Reform Institute filed an amicus brief in the case, said that the 2013 law merely gives defense attorneys the same level of access to treating physicians as plaintiffs’ attorneys. Delegal said that treating physicians are often the keys to the cases.

“The experts for the plaintiff and defendant side often cancel one another out,” Delegal said. “But a doctor who treated the patient before or after the alleged injury is similar to a witness who sees whether a car striking a pedestrian ran a red light. They are absolutely vital in determining if there is any fault.”

The law stems from a 1988 Supreme Court case that effectively said that those who sue in medical malpractice cases forfeit their rights to doctor-patient confidentiality. Subsequent rulings by the high court narrowed access to treating physicians to plaintiffs' attorneys. A defense attorney could interview a treating physician during a deposition only.

Scott says the 2013 law process speeds up resolution of cases and helps to weed out frivolous lawsuits

“The unknown is the hardest thing for defense attorneys in these cases,” Scott said. “They often feel compelled to settle when evidence, say, from a treating physician would tell them otherwise.”

Weaver filed the suit in 2013 as part of a larger effort by the Florida Justice Association (trial lawyers).

In July 2015, Florida’s First District Court of Appeal upheld an earlier ruling that the law neither preempted by HIPAA nor constituted a special law unfairly favoring medical malpractice defendants.

The defendant in the case, Dr. Stephen Myers, said in his brief at the Supreme Court said the law is “constitutional in every respect” and urged the justices to find that the law, which requires written authorization by the plaintiff, does not deny parties access to the courts.

“The authorization form merely imposes a simple and reasonable condition precedent to filing suit, which is well within the Legislature's power to impose and consistent with other preconditions and restrictions that have been expressly found to be constitutionally permitted,” Myers said.

In addition, Myers argued that Weaver’s privacy claim was unwarranted since her husband relinquished his privacy rights upon his death. Besides, he said, medical malpractice plaintiffs waive their privacy rights when they bring an action.

“Plaintiffs who initiate medical malpractice lawsuits no longer have a ‘legitimate’ expectation of privacy in their own relevant medical records,” he said.

Meanwhile, Governor Scott, ineligible to run for another term, says he will ignore precedence that appointments to replace justices retiring at the end of a gubernatorial term are left to the incoming governor.

He said during the Alan Lawson announcement that he will name the replacements for the three retiring justices, Pariente, Lewis and Quince, who face mandatory retirement in 2018, but could stay on until inauguration day in early 2019.

“It’s a gray area,” Delegal said. “But I hope he gets his picks. Otherwise there will be sleepless nights if the next governor favors the plaintiffs’ bar.”

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