Medical Malpractice — You Have the Right to Medical Privacy

Sean M. Cleary
3 min readMay 15, 2018
Photo by rawpixel on Unsplash

Medical malpractice claims are filed by patients who have suffered extensive injuries due to the irresponsibility of a healthcare provider or healthcare facility. In order to be considered medical malpractice by the law, the plaintiff must prove that the course of treatment didn’t comply with the standard of care, negligence has caused the injuries and that the damages are more than an unsatisfactory outcome.

Victims of medical malpractice can be either inpatients, who are admitted to the hospital before receiving medical care, or outpatients, who are treated without being admitted to the hospital. Of all the inpatient medical malpractice claims, more than 30% are usually filed because of surgery errors while the main reason behind outpatient medical malpractice lawsuits consists of diagnostic errors.

Privacy-affecting law changes

While in 2014 more than 900 malpractice lawsuits were filed and over 190 million dollars were paid to patients, a significant decrease of these numbers has been recorded in the following years. This drastic change has been caused by some modifications made to Florida’s legislature regarding medical malpractice claims which seem to have made patients reconsider their intention of filing a lawsuit.

Basically, the law required the victim to allow the defendant’s (doctor or hospital) lawyer to interview its healthcare providers in the absence of a legal representative of the plaintiff. In a situation of being harmed by a doctor’s neglectful act of treatment, none of us would like to have the privacy of our medical history discussed with a complete stranger. Fearing that this would also dramatically affect their relationships with their physicians, injured patients have taken a step back from bringing medical malpractice claims.

The reasoning behind the law

It is well-known that insurance companies try to avoid making payments at all costs consequently leading to difficult and costly claim resolutions. The possibility of doctors being forbidden to practice their jobs doesn’t make things easier either. On the contrary, it only makes healthcare providers hesitate to agree to settlements of medical malpractice claims.

Supporting the modified law, the legislature declared that its new version would save money and favor claims settlements. However, the Supreme Court argues that facilitating settlements doesn’t make justice for any of the parties involved in the medical malpractice cases.

Standing for patients’ rights

During an appeal to the Supreme Court, the issue of the medical malpractice victims being forced to agree to have their medical privacy invaded has been raised by a woman whose husband died because of a doctor’s negligence. As a result, the Supreme Court has decided to strike down the sections of the law which allowed the legal representative of the defendant to interview the patient’s doctors in his or his lawyer’s absence. This law stated that the victim’s attorney would lose the right of being notified about such interviews if he fails to schedule them within 15 days.

So if you ever want to file a medical malpractice lawsuit, remember that the lawyer of the healthcare provider who has violated the medical standards doesn’t have the right to speak to your doctors without you being there.

If you enjoyed this story, visit The Law Offices of Sean M. Cleary website for more news, stories, and tips to stay safe.



Sean M. Cleary

Personal injury attorney in Miami, Florida, sharing data statistics for safety awareness from cases for car accident, medical malpractice and wrongful death.