There has been shortage of significant cases affecting medical malpractice claims in Florida this year, so with 2015 just around the corner I thought we would roundup the news highlights from the past twelve months.
Caps on Pain and Suffering Damages in Medical Malpractice Death Cases Ruled Unconstitutional
On March 13, 2014, the Florida Supreme Court issued its long-awaited ruling in the McCall vs. United States. Michelle McCall died while in the care of military medical personnel shortly after the birth of her son. A wrongful death lawsuit alleging medical malpractice was filed in which the woman’s parents and her newborn son were the only claimants. The non-economic award of $2 million was reduced to $1 million when the caps described in §766.118, Florida Statutes were applied. On appeal, the U.S. 11th Circuit, federal constitutional arguments were rejected, but four questions regarding state constitutional claims were certified to the Florida Supreme Court.
The Florida Supreme Court found that, in wrongful death cases, the caps on non-economic damages enacted in 2003 violate the equal protection provision of the Florida Constitution. The caps remain in place in cases involving non-lethal injury. The ruling will affect wrongful death cases currently in litigation as well as those yet to be filed.
As stated above, the McCall decision is currently limited only to wrongful death cases. Proponents of the decision believe that this decision may signal the Court’s reasoning that all caps are unconstitutional including personal injury caps. However, defenders of the caps argue that the Court may have preserved the caps on personal injury by acknowledging that “the legal analysis for personal injury damages and wrongful death damages are not the same”. The future of medical malpractice caps should become clearer as the Court heard oral arguments this past for the first case challenging the remaining medical malpractice caps.
Health Care Providers and their Attorneys can have Direct Access to Patients’ Protected Health Information in Malpractice Cases
On October 10, 2014, the U.S. Court of Appeals for the Eleventh Circuit in Murphy v. Dulay, decided that a Florida law allowing prospective defendants in medical malpractice cases to obtain records directly from other health care providers and to interview them about patient care and treatment is fully compliant with the Health Insurance Portability and Accountability Act (HIPAA), under certain conditions.
The statute in question took effect on July 1, 2013. The statute requires a prospective plaintiff who intends to file a malpractice claim to provide an “Authorization for Release of Protected Health Information” to any health care provider they intend to sue, in addition to other statutory requirements. The Authorization provides access to medical records and allows malpractice defendants and their attorneys to have direct contact with certain health care providers who have knowledge relevant to the alleged injuries during both the presuit investigation and during litigation.
Health care providers and their legal counsel should develop a strategy on how to utilize these additional discovery methods with an eye toward remaining in compliance with this new law.
Hospital Incident Report Not Patient Safety Work Product
On July 30, 2014, Judge Wallace in Charles v. Southern Baptist Hospital of Florida, Inc. d/b/a Baptist Medical Center-South, Case No. 2012-CA-002677, ordered Baptist Hospital to produce documents the hospital claimed were patient safety work product. The order expressed a very restrictive view of patient safety work product.
In Charles, Baptist Hospital argued that, regardless of the purpose behind the collection of information, the only information not privileged under the Patient Safety Act was information provided to a government entity. The court rejected this argument. In its analysis, the court noted that under the Patient Safety Act, certain categories of information are expressly excluded from being patient safety work product, including information that is collected, maintained, or developed separately, or that exists separately, from a Patient Safety Evaluation System. The court found that Florida has very specific requirements for hospital risk management, including staff licensure and submission of certain incident reports to the state. The court further noted that Florida requires hospitals to gather information via incident reports that may not be reported to the state, but which is necessary to carry out the mandated activities. Therefore, the court held that the information required to be gathered under Florida law, whether reported or not, is precluded from being protected patient safety work product under the Patient Safety Act. The hospital is currently appealing this order in the First District Court of Appeals.
While this case may not set any official precedent, this order will be part of the ongoing discussion about Patient Safety Organization protections. Organizations that have established a Patient Safety Evaluation System for reporting to a Patient Safety Organization should explore any state-mandated safety and quality regulations to ensure the collection of such information is conducted in harmony with the Patient Safety Evaluation Systems to ensure proper protection as patient safety work product.
The Medical Malpractice Defense Team at GrayRobinson is committed to assisting clients in navigating this development and other changes as they happen. Please feel free to contact us at your convenience.
By Julie Tyk, J.D.