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.”

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]

 

 

ACA in The Supreme Court – The Closing Arguments

Author: Marc L. Penchansky

Yesterday, the Supreme Court of the United States heard the final two arguments concerning the Affordable Care Act (“ACA” or “Act”). The day’s first argument concerned whether the remaining provisions of the Act could stand if the Supreme Court ruled that the mandate was unconstitutional. For more information on that argument, click here. The final argument concerned the extension of Medicaid benefits codified in the Act.

Medicaid is a cooperative program between the federal government and the States where the Federal government shares the costs of providing health care to the indigent with the States. In exchange, the States agree to comply with the requirements of the Medicaid Act and its implementing regulations. In an effort to insure as many Americans as possible, the ACA extended Medicaid coverage beginning in 2014 to individuals with incomes up to 133% of the poverty level. 42 U.S.C. § 1396a(A)(10)(a)(i)(VIII). It is estimated that this extension would lead to an additional 16 million people on Medicaid. For the first three years, the federal government must pay all of the additional costs. In 2017, the federal government’s share is lowered to 95%, and over the next two years the federal share diminishes one percent per annum. In 2020, the allocation becomes fixed at 90% paid by the federal government and 10 % paid by the States. 42 U.S.C. § 1396d(y). This level of federal support far exceeds the typical federal contribution rate of 50% to 83%. See 42 U.S.C. 1396(b); Government’s Brief at p. 9.

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Doctors Forbidden From Sharing Information Learned About Chemicals Used in Fracking

Author: Karen L. Tucci

A new Pennsylvania law, an amendment to Title 52 (Oil and Gas) of the Pennsylvania Consolidated Statutes, requires that companies provide to a state-maintained registry the names of chemicals and gases used in fracking. It also forbids physicians, and other health care providers, from obtaining information on potentially harmful chemicals used in fracking, if that information is claimed to be a trade secret or confidential proprietary information of the company, unless the physician enters into a confidentiality agreement.

Fracking is the method of forcing water, gases, and chemicals at tremendous pressure of up to 15,000 pounds per square inch into a rock formation as much as 10,000 feet below the earth’s surface to open channels and force out natural gas and fossil fuels. The Marcellus Shale extends beneath the Allegheny Plateau, through Southern New York, much of Pennsylvania, east Ohio, West Virginia, and parts of Maryland and Virginia. It is one of the nation’s largest sources of natural gas mining. Pennsylvania has about 5,255 wells, as of the beginning of March 2012, with dozens being added each week. Over the expected life time of each well, companies may use as many as nine million gallons of water and 100,000 gallons of radioactive isotopes within a four to six week period. About 650 of the 750 chemicals used in fracking operations are known carcinogens.

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Pinning Physician Negligence on Hospitals in Florida Still as Unclear as Ever

Author: Derek M. Daniels

In the recent case of Newbold-Ferguson v. AMISUB, Inc. d/b/a North Ridge Medical Center, 2012 WL 555395 (Fla. 4th DCA 2012), the Fourth District Court of Appeals chimed in yet again on the issue of holding hospitals responsible for physician negligence under the guise of the doctrine of non-delegable duty. For some reason, the 4th DCA seems particularly interested in this issue, and their latest iteration of strained logic effectively does nothing more than stir already muddied water.

The patient went to the hospital for back surgery and died the next day from cardiac arrhythmia. Although not clear from the opinion, it appears the crux of the claim was the emergency room physician failing to timely respond to the code. As to the hospital, the plaintiff alleged directly liability for the ER physician’s negligence based on a “non-delegable duty to supervise…so that competent and careful medical personnel are provided….” On this claim, the trial court determined that the non-delegable duty as alleged did not exist and in allowing plaintiff to amend to allege a viable claim against the hospital instructed counsel that the issue was “the non-delegable duty to diligently determine that competent physicians are afforded house privileges or staff privileges.” In what sounds like a bizarre ruling, the trial court dismissed plaintiff’s next attempt at alleging a claim against the hospital but permitted the case to go to trial under the prior complaint with a ruling that all references to the emergency room physician be redacted. At trial, plaintiff was precluded from introducing evidence that the ER doctor deviated from the standard of care, and the jury returned a verdict in favor of the hospital.
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. . . And the Sky is Blue: Study Shows that Plaintiffs Prefer to File Civil Cases in Philadelphia

Author: Marc L. Penchansky

UPDATE: On February 15, 2012, the Court of Common Plea in Philadelphia County announced changes to the CLC. The Honorable Judge John W. Herron entered General Court Regulation No. 2012-01. The Order eliminated reverse bifurcation in mass tort and asbestos cases unless agreed upon by the parties. The order further limited consolidation in mass tort cases. Out-of-state counsel admitted pro hac vice may only try two mass tort cases a year in Philadelphia. The Court also asked out-of-state asbestos plaintiffs to seek other venues to file their claims in order to resolve a backlog of asbestos cases in Philadelphia.

Earlier this month, the International Center for Law and Economics issued an appendix to its previously published study entitled Are Plaintiffs Drawn to Philadelphia’s Civil Courts? An Empirical Analysis.” It is likely that many Philadelphia area attorneys did not need to break the spine of the study or await the publication of the appendix to answer the title’s question – yes, plaintiffs are attracted to the Philadelphia court system. Indeed, the American Tort Reform Foundation had already labeled Philadelphia with the attention-getting moniker, America’s Number One Judicial Hellhole.

The principal study found that Philadelphia courts had a larger caseload than expected. Further, the study found that Philadelphia plaintiffs overwhelmingly preferred jury trials and were less likely to settle. (p. 2). The preference for Philadelphia as venue for civil cases became particularly apparent when Pennsylvania restricted venue in medical malpractice cases. In 2003, the Supreme Court of Pennsylvania required medical malpractice lawsuits to be filed in the county where the cause of action arose. See Pa.R.C.P. 1006(a.1). The filings of medical malpractice cases in Philadelphia declined 64.9 % from 2000 through 2010. (p. 29). Other Pennsylvania counties observed only a 28.2 % decline during that same time period. (p. 29).

The study also focused on the Complex Litigation Center (CLC). The CLC was the nation’s first courthouse “designed exclusively for complex multi-filed Mass Tort cases . . .” According to the authors, the CLC actively sought to recruit the filing of lawsuits in Philadelphia. (pp. 8-9). The CLC accomplished this by offering to plaintiffs quick and rather rigid trial dates. (p. 9). Further, the CLC required only federally mandated minimum contacts to establish jurisdiction and was permissive in permitting venue. (p. 9). When these attributes are coupled with Philadelphia’s reputation as a big-verdict forum, the hope was that Philadelphia would become attractive to Plaintiffs’ attorneys and “tak[e] business away from other courts.” (pp. 8-9).

The recently released Appendix to the report collected data from mass tort cases filed in Philadelphia. The author tried to ascertain plaintiffs’ home addresses and the locations of the alleged injuries. In 1357 cases, the author learned the home address of the plaintiff and/or the injury location. In 67.2 % of those suits, no connection between Pennsylvania and the plaintiff was apparent (App. at p. 2). Only 13.3% of those cases were filed by plaintiffs who live or were allegedly injured in Philadelphia. (App. at p. 2).

When only home address is considered, 72.8 % of plaintiffs reside out-of-state while a mere 6.1 % of plaintiffs report Philadelphia home addresses. (App. at p. 2). In those cases where evidence of the site of the alleged injury was available, only 35.8% alleged injury in Philadelphia and another 33.1% alleged injury in another Pennsylvania county. When asbestos cases are removed from the calculations, the numbers are more startling. Only 16% of the injuries were located in Pennsylvania and 12% were located in Philadelphia. (app. at pp. 4 and 5).

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