Fixing Hasan v. Garvar: Keeping Physicians In-the-Know

Author:  Amy L. Miles

In December of last year, the Supreme Court of Florida released a broadly-sweeping opinion that appeared to strip from non-defendant physicians the right to consult with an attorney when they are called upon to give testimony on their treatment of a plaintiff/patient: Hasan v. Garvar, Case No. SC10-1361 (Dec. 20, 2012). We described this opinion in our December 26, 2012 entry. In response to the Supreme Court opinion, the Florida Legislature took the issue head-on by amending Florida’s Physician-Patient Confidentiality Statute, section 456.057, Florida Statutes. The amendment, which became effective on July 1 of this year, provides physicians and health care providers with the right to consult with their attorneys whenever they become involved in litigation or administrative action relating to their treatment of a patient, even if they are not a named defendant. For the most part, however, that statutory right must be known exercised by the physician. Under the new provisions, if the physician’s insurer represents a defendant or prospective defendant in the action, it may not initiate contact with the non-party provider to assist him or her in securing legal representation for his or her part in the action.

getty_rf_photo_of_doctor_and_patient_talkingBefore the amendment, the Physician-Patient Confidentiality Statute provided that confidential patient information and records could not be disclosed to anyone other than the patient’s other health care providers without the patient’s authorization. It had one exception, which permitted a health care practitioner or provider to disclose confidential patient information when he or she “reasonably expects to be named as a defendant” in a medical negligence action. Then, a health care provider could disclose the patient’s confidential information to the extent that he or she needed to in order to defend the potential malpractice claim.

With the amendment in place, the Legislature has broadened the health care provider’s right to disclose confidential patient information to his or her attorney not only when the provider is or expects to be a defendant in a medical negligence case, but also to when he or she “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 of medical negligence, or administrative proceeding.” § 456.057(7)(d)(4), Fla. Stat. (2013).

In an apparent concession to the Hasan opinion, however, that expanded right to disclose limits the health care provider’s insurer’s ability to contact the health care provider or assist him or her in selecting legal counsel if the insurer also represents a defendant or a prospective defendant in a medical negligence action. § 456.057(7)(d)(4)(a). Under the current statute, if the health care practitioner’s insurer represents a current or prospective defendant, it “may not contact the health care practitioner or provider to recommend that” the provider seek legal counsel and may not select an attorney for the provider. § 456.057(7)(d)(4)(a)(I), (II). If the practitioner initiates the contact with his or her insurer, however, the insurer may recommend an attorney (who does not represent a defendant or prospective defendant in the matter) to represent the practitioner. The practitioner may select an attorney that represents the insurer or the insurer’s other insureds in other matters, but that attorney must not directly or indirectly disclose information to the insurer that relates to representing the provider, other than the attorney’s billing information for the services provided.

The amendment to the Physician-Patient Confidentiality Statute is welcome relief for physicians who had been facing potential depositions and discovery requests without the possibility of representation under the Supreme Court’s Hasan decision. Happily, the legislature intended the amendment to apply retroactively to causes of action that had accrued before the July 1 effective date. By denying the insurer who represents a defendant or potential defendant—i.e., the insurer that is the most likely to know about the medical negligence action in the first place—the right to contact any non-party health care provider to recommend that the provider seek legal counsel, however, the statute still leaves health care providers who are unaware of their right to representation in the dark. Therefore, insurers of health care practitioners and providers must re-double their efforts to inform their insureds of the right to seek counsel whenever they are contacted with discovery requests, or for purposes of deposition or other testimony before that contact occurs.

Hasan v. Garvar-Protecting Patients’ Rights or Ripping Rights Away From Physicians?

Author:  Amy L. Miles

On December 20th, the Supreme Court of Florida released an unprecedented, broadly-sweeping opinion that appears to strip from non-defendant physicians the right to consult with an attorney when they are called upon to give testimony on their treatment of a plaintiff/patient. In the opinion authored by Justice Lewis, Hasan v. Garvar, Case No. SC10-1361 (Dec. 20, 2012), the Court relied on Florida’s physician-patient confidentiality statute to hold that a patient’s privacy trumped the physician’s right to consult with an attorney about the circumstances surrounding the physician’s treatment of the patient even if the consultation was limited to avoid disclosing any confidential patient information.

In Hasan, a patient sued his dentist for failure to diagnose his dental condition.  After seeing his dentist, the patient had visited an oral and maxillofacial surgeon, who treated the patient.  The medical malpractice carrier for the dentist and the surgeon was the same insurance company.  During the course of the suit against the dentist the patient sought to take the surgeon’s deposition.  The surgeon had not been named as a defendant.  Accordingly, the insurer retained an attorney to consult with the surgeon for an ex-parte, pre-deposition conference.  The attorney was not the same attorney, or even from the same law firm, that had been retained to defend the dentist.

Ruling on the patient’s challenge to that pre-deposition conference, the trial court placed limitations on the consultation that prevented the surgeon from disclosing confidential patient information, but otherwise permitted the surgeon to meet with the attorney.   The Fourth District Court of Appeal  affirmed that order.  Quashing the Fourth District opinion, the Supreme Court held that “the physician-patient confidentiality statute,” section 456.057, Florida Statutes (2009), “prohibits a nonparty treating physician from having an ex parte meeting with an attorney selected and provided by the defendant’s insurance company.”  The Court determined that the meeting is prohibited “whether or not they intend to discuss privileged or non-privileged matters without measures to absolutely protect the patient and the privilege.”      cet5007

Based on prior cases that prevented only the defendant’s counsel from ex parte meetings with a non-party physician, the Hasan opinion seems to broaden that prohibition to any counsel at all.  The Supreme Court stated that the legislature’s intent in enacting section 456.057 was to “safeguard privileged medical information and to strictly control the dissemination of a Florida patient’s medical information.”

The Hasan opinion left the actual extent to which a nonparty physician may consult with any counsel prior to a deposition unclear.  Under the facts in Hasan, the surgeon’s counsel was retained by the defendant’s insurer because both physicians were insured by the same company.   Thus, the court found that even though the counsel the insurer selected to consult with the surgeon was not defense counsel, “counsel provided by the defendant’s insurer also presents the same compromised interest as other outsiders, and, therefore, is barred from meeting with a nonparty treating physician.”  The Court’s holding expressly prohibited only “ex parte meetings between a patient’s nonparty treating physician and counsel provided by the defendant’s insurance company.”  Nevertheless, the Court seemed to prohibit a physician’s consultation with any counsel by its statement that “ex parte meetings between a nonparty treating physician and outsiders to the patient-health care provider relationship are not permitted.”  (Emphasis added).

In prohibiting ex parte meetings with counsel provided by the insurer, the Court also stated that privileged medical information is “not limited to information made ‘in the course of the care and treatment.’”   Therefore, even if the meeting was limited to issues outside of the actual patient care, the Court prohibited the consultation.   The Court was concerned that the insurer’s provision of counsel to the surgeon would foster “an environment conducive to inadvertent disclosure of privileged information.”

Of course, under the statute, a nonparty physician is not prohibited from consulting with counsel when he or she “reasonably expects to be named as a defendant.”  Under the holding in Hasan, future court decisions may be required to define what a reasonable expectation of being named a defendant would be in order to clarify nonparty physicians’ right to consult with counsel before giving deposition testimony.

The Supreme Court rejected arguments that its interpretation of the statute infringed on a physician’s First Amendment right to free speech or right to counsel, finding that if the physician becomes a party to a medical negligence legal action, he or she may discuss confidential patient information with an attorney.

In his dissent, in which Justice Canady concurred,  Justice Polston characterized the majority opinion as “so breathtakingly broad that it even forbids the nonparty physician from consulting a lawyer that she may choose to hire independently.”  Justice Polston opined that “the majority wrongfully prohibits a physician from consulting with her own lawyers, paid for by her insurance, by assuming that ethical violations will occur.”  He stated, “I am unaware of any other circumstance where this Court has prohibited someone from consulting a lawyer for legal advice.”  “There is no reason in this case to question whether the physician and her lawyer would do anything other than abide by the court order and their respective ethical obligations.”

Two Strikes for Tort Reformers in New Jersey, New Hampshire

Author: Marc L. Penchansky

As health care costs continue to be a concern for their constituents, state legislatures have looked for unique ways to assure access to health care while maintaining or lessening costs.  In order to achieve these goals, state legislatures often look to reform medical malpractice litigation.  Last week, two unique tort reform proposals were defeated in New Jersey and New Hampshire.

In New Jersey, Assembly Bill A2178  sought to provide civil immunity to retired volunteer physicians who provide care to the indigent at nonprofit free-standing clinics and federally qualified health centers.  The clinic or center and its trustees, directors, officers, employees, agents, and volunteers would also be afforded civil immunity.  The grant of immunity would not extend to gross negligence or willful and wanton conduct.  Further, the legislation required that the patient and the physician agree to the immunity prior to the rendering of the patient care or treatment. 

The arguments in favor and in opposition to this bill are easy to surmise.  Supporters of the legislation argue that granting civil immunity to volunteer physicians would serve as an incentive that would help free clinics recruit more physicians who would in turn treat more patients.  On the other hand, opponents argue that this bill exerts a cost for free medical care, which is the disavowing of one’s legal rights.  In the end, the bill failed to pass in the last legislative session.

In New Hampshire, Governor John Lynch vetoed “early offer” legislation.  The bill  established a voluntary program to allow medical providers’ insurance companies to make “early offers” to injured patients who may bring a malpractice suit.  If a patient agreed to participate in the program but rejected the early offer, the patient would need to post a bond to cover the defense’s attorneys’ fees and costs.  If the jury awards the injured patient less than 125 percent of the early offer, the patient would have to pay the defense’s attorneys’ fees and costs.  An earlier version of the bill also required the rejecting patient to prove their case not by a preponderance of the evidence but by a heightened, clear and convincing standard.   The heightened standard provision was not in the final bill sent to the Governor.

Supporters argued that the bill would streamline the process and allow patients access to quicker settlements.   Governor Lynch in his veto noted, “While this legislation is well intentioned, I do not believe that it sufficiently and fairly balances the interests of the general public with the interests of medical providers in expeditiously resolving medical injury claims.”   Governor Lynch took special exception to the “loser pays” provision.  Governor Lynch wrote:

That standard is inappropriate for medical malpractice cases. For example, an injured patient submitted a claim for $175,000 in economic damages. The medical provider disagrees on the costs of treatment and offers $140,000. If a jury eventually agrees with the patient but awards only $172,000 because there was a double billing error, the patient has won the case, but will still have to pay the medical providers legal fees because the award was less than 125% of the early offer. That is not the right result.

Although proponents of tort reform may be discouraged by these losses, they should be heartened by legislators’ willingness to propose unique solutions.  It will be interesting to watch lawmakers continue to balance the competing interests and to see how tort reform efforts continue to evolve.  Perhaps, a legislator will stumble on the holy grail and craft a proposal that is responsive to all parties’ concerns.

Pennsylvania Supreme Court Revisits Discarded Defense For Doctors

Author: Marc L. Penchansky

A physician-defendant in a Pennsylvania medical malpractice case was previously entitled to a jury instruction regarding the “error in judgment” defense.  A jury was instructed that if a physician used his best judgment, exercised reasonable care and had the requisite knowledge or ability, the physician is not negligent even if complications occurred.  In 2009, the Superior Court of Pennsylvania ruled that the “’error of judgment’ instruction . . . does not inform jurors on the applicable standard of care and instead tends only to confuse, rather than clarify, the issues the jury must decide . . . .”   See Pringle v. Rapaport, 980 A.2d. 159 (Pa. Super 2009).[1]  The Supreme Court of Pennsylvania refused to hear the appeal in Pringle. 

In 2011, the Superior Court applied its holding in Pringle retroactively.  See Passarello v. Grumbine, M.D., 29 A.3d 1158, 2011 PA Super 199 (2001).[2]   Last Friday, the Supreme Court of Pennsylvania agreed to hear the appeal in Passarello.  The Supreme Court specifically agreed to determine the vitality of the error in judgment instruction[3] and if the prohibition survives, whether it should be applied retroactively.[4] 


Soon after, the Superior Court reached its decision in Passarello, McCumber Daniels attorney, John McGreevey, authored an article on the “error in judgment” instruction and the implications of Pringle and Passarello  His article, Don’t Take Away My Error in Judgment, can be found here.[5]



Day 2 – The Supreme Court Considers the Constitutionality of the Minimum Coverage Provision of the Affordable Care Act

By Marc L. Penchansky

Earlier today, the United States Supreme Court heard argument about whether Congress exceeded its constitutional authority when it passed the minimum coverage provision of the Affordable Care Act. This provision which is often referred to by the misnomer, the individual mandate, requires nearly everyone to obtain health insurance or face paying a financial penalty as high as $3,000.00 with their tax return. Although the parties and amici have raised several constitutional provisions in support and opposition of the minimum coverage provision, the most frequently discussed and debated question is whether the disputed provision oversteps Congress’s authority to regulate interstate commerce.

Before discussing the legal arguments of each side, it is important to discuss the environment in which the Act was passed. All hospitals with an emergency department that accept Medicare payments, which is to say nearly all hospitals, are required to provide medical services to anyone who walks through their doors, regardless of their ability to pay. See Emergency Medical and Treatment and Active Labor Act of 1996, 42 U.S.C. § 1395dd. According the American Hospital Association, hospitals in the last decade have provided $300 billion in uncompensated care to the uninsured and underinsured. Moreover, in 2008, uninsured Americans received $86 billion worth of health care from all providers. See J. Hadley et al., Covering the Uninsured in 2008: Current Costs, Sources of Paryment & Incremental Costs 399, 402-403, Health Affairs, Aug. 25, 2008. Of that $86 billion, approximately $56 billion was in the form of uncompensated care. Id. at 399.

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Supreme Court Considers its own Jurisdiction to Determine the Constitutionality of the Affordable Care Act

By Amy L. Miles

This morning, the United States Supreme Court heard the first day of Oral Arguments surrounding the controversy over some provisions of the Obama Administration’s healthcare reform act known as the Affordable Care Act (ACA). In its first round, the Court must determine whether it has the jurisdiction to consider the challenges to the Act at all. The ACA, among other things, contains an “individual mandate,” which will require U.S. taxpayers above a certain minimal income threshold to maintain healthcare insurance or to pay a penalty for failing to do so. In the case of Department of Health and Human Services v. Florida, which is a consolidation of challenges to the ACA from lawsuits brought in 26 states, the court will be considering whether, among other things, the individual mandate is a constitutionally permitted exercise of legislative power. As the ACA is written, the individual mandate goes into effect in 2014 and will be fully implemented by 2016. Therefore, the lawsuits challenging the mandate were in the form of seeking injunctive relief from the courts—asking them to prohibit the federal government from implementing the mandate before it goes into effect.

The jurisdictional question that the Supreme Court must answer first is whether it has the authority to issue the injunction the various states are seeking. Under the federal tax Anti-Injunction Act (AIA), courts have absolutely no power to prevent the federal government from assessing or collecting taxes before they are actually assessed or collected. Of course, once a taxpayer is liable for paying an assessment, he or she has a right to bring a refund action in federal court. The determination of the Court’s power to decide this case will revolve around whether the penalty required by the ACA is properly classified as a tax, which would divest the Court of its injunctive power before the law is in effect, or whether it is some other non-tax penalty.

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