Just six months after the Florida Supreme Court decided Hasan v. Garvar, 2012 WL 6619334 (Fla. 2012), Governor Rick Scott signed into law SB 1792. The new law partially reverses the holding in Hasan that Florida’s patient confidentiality statute, §456.057, Florida Statutes, bars ex-parte communication between a non-defendant subsequent treating physician and the physician’s attorney. Hasan also prohibited non-party physicians from independently hiring and consulting with a lawyer on certain subjects including deposition or trial procedure, the physician’s potential for legal exposure in the lawsuit as a Fabre defendant, and the potential for giving testimony that could affect board certification.
SB 1792 amends §456.057, Florida Statutes, to explicitly permit a physician to consult with his or her lawyer where the physician reasonably expects to be deposed, called as a witness or to receive discovery requests in a medical negligence action, including the presuit investigation, or an administrative proceeding. The physician may tell his or her lawyer information disclosed by a patient to the physician and show the lawyer records created by the physician while treating the patient.
However, the new law does not completely undo Hasan. The physician’s lawyer may not be a conduit for communications between the physician and the defendant in the medical malpractice case or the defendant’s insurer. If the liability insurer for the physician also represents a defendant or prospective defendant in the malpractice action, there are important limitations on these consultations.:
- The insurer for the physician may not contact the physician to recommend that the physician hire a lawyer.
- If the physician contacts his or her insurance company about the matter, the insurer may not select a lawyer for the physician. The insurance company may recommend lawyers who do not represent a defendant or prospective defendant in the matter.
- The lawyer selected by the physician may not disclose any information to the insurer, other than categories of work performed or time billed.
These restrictions do not apply if physician is or reasonably expects to be named as a defendant in the malpractice case.
Because SB 1792 prohibits insurers from alerting physicians of their right to seek the advice of a lawyer, it is critical that physicians and other health care practitioners understand when to ask for the assistance of a lawyer consistent with the above limitations since plaintiffs will seek to prevent prohibited attorney consultations during a medical negligence action.
Nevertheless, although the new law does not restore the pre-Hasan status quo, it goes a long way toward ensuring that physicians are afforded adequate legal representation.