Trial attorneys in Florida have filed five separate lawsuits against health care providers to challenge the Florida law that puts new limits on medical malpractice awards.
The attorneys maintain that the law lets medical malpractice defendants obtain personal health care data about a plaintiff from health care providers, which they claim is in violation of the privacy rights that were set up under the federal Health Insurance Portability and Accountability Act.
The attorneys state that the law is going to discourage patients from filing malpractice lawsuits because they are afraid that personal information will be revealed. The suits are seeking a judgment that states that the law violates the rights of patients. They want an injunction that would stop the enforcement of the law, which went into effect July 1.
The law allows contacts by potential defendants with providers of health care, before the suits are filed. It also allows unlimited release of personal health data to the defendants without consent.
The new law also mandates that expert witnesses that are called against a defendant doctor must practice the same type of medicine, and can’t just practice in a similar field.
Three lawsuits were filed in federal court in FL, and two were filed in state court.
The plaintiff in the case in Miami stated that she is considering a medical malpractice suit for her child, who was born with a serious seizure disorder. However, she is concerned about privacy due to the new law. She wants to protect her privacy and that information about a sexual assault that happened during her pregnancy will stay private.
Medical malpractice limits are controversial in many states, such as Virginia, where our law firm is based. Our view on medical malpractice caps is they are unconstitutional, under the 7th Amendment. There it is stated that a jury trial must be made available in all common law cases. Medical malpractice lawsuits are surely common law, so medical malpractice caps are unconstitutional.
Some states have struck down these caps as unconstitutional. How can a law be unconstitutional in one state but not in another? That is an enigma to which we have yet to see an answer.
Shapiro, Lewis, Appleton & Favaloro, P.C. is a Virginia personal injury law firm that often writes commentary on medical malpractice law.