In December of 2012, the Supreme Court of Florida issued a ruling in Hasan v. Garvar, 108 So.3d 570 (Fla. 2012), that interpreted the Patient Confidentiality Act, § 456.057, Fla. Stat., as prohibiting any ex parte meeting between a non-party treating physician and their attorney. The Court reasoned that the purpose of the statute was to protect the disclosure of patient information, and a meeting between a physician called as a non-party witness and their attorney prior to the witness’s deposition would inevitably lead to the unlawful disclosure of confidential patient information. The only exception recognized by the Court was in cases where physicians reasonably believe that they will be named as defendants in medical negligence actions.
The Hasan holding immediately sparked a strong reaction from the medical community and the malpractice defense bar. Commentators questioned the constitutional implications of restricting physicians’ right to association and right to counsel, among others. E.g., Andrew S. Bolin & Renee D. Faried, A Plantiff’s Right to Confidentiality vs. A Physician’s Right to Counsel: Unpacking the Hasan Decision, Trial Advoc. Q., Spring 2013, 32 No. 2, at 12. The ruling put Florida in the unique position of being the only state to restrict someone’s right to confer with counsel based solely on their profession.
Reacting quickly, the legislature passed amendments to Section 456.057 in the 2013 session—only a few months after the Hasan decision. The amendments, which took effect July 1, 2013, expressly allow physicians to confer with counsel and discuss otherwise confidential patient information “if the health care practitioner or provider reasonably expects to be deposed, to be called as a witness, or to receive formal or informal discovery requests . . . .” § 456.057(7)(d)4., Fla. Stat.
Courts have yet to rule on any challenges to the new amendments, but the changes are good news for health care providers, who are now free to meet and seek the advice of counsel prior to testifying in a medical negligence case. If you are a physician, dentist, or other health care provider, and you may be involved in a medical malpractice suit as a defendant or witness, or if you just have questions, consult an attorney. Dell Graham has board certified lawyers in Healthcare Law and Civil Trial Law who are available to help.