The Florida Supreme Court on Thursday heard oral arguments in a case challenging a 2013 law that has largely made it more difficult for patients to prevail in medical malpractice lawsuits.

  • 2013 law makes it difficult for patients to win in medical malpractice lawsuits
  • Access to patients medical records usually results in dismissal of malpractice suits
  • Patient advocates say access to patient's records are an unconstitutional violation of privacy

The law allows attorneys for an accused doctor's insurer to question the plaintiff patient's other doctors about the patient's medical history. Such interviews have resulted in the dismissal of malpractice suits, with insurers successfully arguing that previously unknown medical conditions, not a doctor's mistake, caused a patient's injury or death.

Patient advocates contend the interviews are an unconstitutional violation of privacy, a view several justices appeared inclined to share. 

"You have adjusters and experts coming in to talk to the treating doctor, and that's probably the end of the treating doctor," said Justice Barbara Pariente, a member of the court's liberal wing. "So, it helps the affordability by chilling medical malpractice cases. I mean, the real world is, that's what it's about."

The insurance industry takes issue with that characterization, arguing that patients effectively waive their right to privacy when they choose to file a malpractice suit and that medical records not germane to the suit can't be considered by a court, anyway.

"People will know what's going on if it's going to be used to some kind of advantage," defense attorney Erik Bartenhagen told the justices. "I think if it's going to be used in court, then a plaintiff will know, 'wait, hold on, how did you get that?'"

Insurers have warned that the sequential repeal of medical malpractice reforms enacted in recent years by Florida's Republican-controlled legislature will result in skyrocketing coverage costs that could put some doctors out of business. 

Earlier this year, the Supreme Court invalidated the legislature's caps on medical malpractice awards.