Frequently, treating physicians and other health care practitioners are contacted regarding a patient’s past medical incident, or potential malpractice claim, even when the current treating physician is not directly implicated in the prior incident. When an alleged malpractice incident occurs, patients usually seek treatment with a new physician while simultaneously evaluating whether to pursue legal action. As a result, the new treating physician is left in the cross hairs of a possible medical negligence action, and is contacted for information, deposition, or other medical opinions. When a provider gets a phone call about a patient’s past treatment, can the provider call his or her own attorney? If so, can the provider disclose confidential medical information to their attorney without patient authorization? Although the law was unclear as to these questions, the Florida legislature recently answered both questions with a qualified “yes.”
Senate Bill 1792
During the 2013 legislative session, the Florida legislature passed Senate Bill 1792, amending Florida’s medical record privacy law to expressly allow a provider to disclose information to the provider’s attorney during a consultation if the provider reasonably expects to be deposed, to be called as a witness, or to receive formal or informal discovery requests in a medical negligence action, presuit investigation, or administrative proceeding. See Senate Bill 1792 (here). During the legal consultation, the provider may divulge information disclosed by a patient, or records created by the practitioner, during the course of the patient’s treatment. Furthermore, the bill requires all malpractice claimants to execute a written Authorization for Release of Protect Health Information, before filing suit, which would allow ex parte interviews with the claimant’s treating physician without prior notice to the claimant or the presence of the claimant or the claimant’s attorney. This requirement attempts to satisfy any federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) concerns.
Although Senate Bill 1792 allows treating physicians, not named in a lawsuit, to consult with an attorney about deposition requests, or other legal inquiries, the bill also places some limitations on this practice. First, if a provider’s medical malpractice insurer also represents the actual defendant provider, or prospective defendant, the physician’s insurance carrier cannot contact the provider to recommend that the provider seek legal counsel. Further, the medical malpractice insurer cannot select an attorney for the provider; however, the insurer may recommend an attorney who does not also represent a defendant, or prospective defendant, if the provider contacts his or her insurer about potential involvement in the matter.
Hasan v. Garvar
This legislation comes as a reaction to the recent case of Hasan v. Garvar, where the Florida Supreme Court held that Florida’s patient confidentiality statute bars communication between a subsequent treating physician and the physician’s attorney. Although the court was most concerned with collusion between a non-defendant treating physician and the defendant by using an attorney as a conduit, the Hasan Court left unanswered the question of whether Florida law imposes a blanket ban on communications between a treating physician and any attorney, including an attorney who has no connection to the defendant. The new legislation clarifies that a health care practitioner may consult with his or her own attorney about medical information disclosed by a patient during the time the practitioner treated the patient if the provider reasonably expects to be either deposed, called as a witness, or expects to receive formal or informal discovery requests.