Defamation Lawsuit Threatens to Chill Reporting to Federal Malpractice Database

Even if the public cannot view a physician’s malpractice record on NPDB, hospitals can, and they can use the service to avoid hiring doctors who are more likely to injure patients through negligence or malpractice. Unfortunately, some physicians are trying to eliminate even this use of the NPDB by filing defamation lawsuits against hospitals that attempt to report them. And the Florida Supreme Court may soon weigh in on this issue.

Specifically, an intermediate appeals court in Daytona Beach has asked the state’s highest court to determine how long a doctor has to file a defamation claim against a hospital. The case involves a cardiologist who worked at a hospital in Apopka. In 2007, the hospital’s executive committee suspended the cardiologist’s clinical privileges after issuing “22 factual findings” related to the doctor’s practice of medicine.

As required by federal law, the hospital reported its adverse action to the NPDB. In 2014, the cardiologist sued the hospital, alleging this report “contained false and defamatory material.” As a result of the NPDB report, the cardiologist said he has suffered a “loss of employment opportunities.”

The Florida courts have yet to reach the merits of the doctor’s defamation allegations. There is the initial legal question of whether or not the cardiologist waited too long to file his lawsuit. Under Florida law, an action for “libel and slander,” which includes the cardiologist’s defamation claim here, must be brought within two years of “publication.” So, for example, if a newspaper publishes a defamatory article about you on January 1, 2015, you have until January 1, 2017, to file a libel lawsuit.

But the Florida Supreme Court has also said that “each communication of the same defamatory matter by the same defamer…is a separate and distinct publication.” This means that a separate libel claim arises each time the allegedly defamatory material is published. However, there is a further exception in Florida statutes, which provides that the statute of limitations for a defamation claim “founded upon a single publication” begins at the time of “first publication.”

In this case, the cardiologist brought his lawsuit more than two years after the “first publication” of the hospital’s report to the NPDB. To get around this, the doctor argued there was a new occurrence of defamation each time the NPDB report was “published” to a new organization requesting access. Therefore the two-year statute of limitations should reset each time.

The Florida Fifth District Court of Appeal disagreed. In a June 27 opinion, it held the first publication rule should apply, meaning the statute of limitations “begins to run when a report is issued to the NPDB; any subsequent issuance of that report to legally authorized entities does not accrue a limitations period.” But the Fifth District also acknowledged that since no other Florida court has directly addressed this issue, it has asked the Supreme Court to make a final determination.

Need Help From a Florida Medical Malpractice Lawyer?

If the Supreme Court ends up ruling in favor of the doctor, it could have a chilling effect on hospitals, as they may be reluctant to discipline and report negligent physicians in the future due to fear of litigation. This ongoing legal battle emphasizes the importance of holding doctors accountable through the medical malpractice system. If you or a family member have suffered due to a physician’s negligence, it is imperative you speak with a qualified Clearwater medical malpractice attorney as soon as possible. Contact the Law Office of Paul B. Genet, at 727-510-8802 if you need immediate legal assistance.

Hospital Liable for Forcibly Drugging Pregnant Woman

In February 1997, a pregnant woman returning to the United States from Jamaica was detained at Fort Lauderdale International Airport. U.S. Customs officials falsely believed the woman was concealing illegal narcotics on her person. According to court records, the officials made this determination based solely on the fact the woman “exhibited signs of nervousness.”

After a search of her belongings and a pat-down failed to uncover any drugs, Customs officials handcuffed the woman and took her to a nearby hospital where she was forced to undergo an invasive physical examination. Doctors administered a laxative which forced the woman to undergo several bowel movements. Once again, no drugs were found, and the woman was ultimately released from custody.

Unfortunately, the woman suffered a number of medical complications following her ordeal and ended up delivering her child nearly three months prematurely. The woman subsequently sued a number of parties, including the doctors who administered her the laxative. As it turned out, the laxative “had not been tested on pregnant women and was not recommended for their use except when medically necessary,” according to testimony presented at trial.

In June 2014, more than 17 years after the incident, a Miami-Dade jury awarded the woman $128,700 in damages against the hospital. This was actually the the third time the case was presented to a jury. There were two previous mistrials. The first mistrial came after one of the defendants, a doctor at the hospital, was found to have engaged in multiple conversations with trial witnesses outside of the courtroom but within hearing distance of some jurors. The trial judge not only declared a mistrial but imposed sanctions on the doctor for his misconduct. (The doctor was subsequently dismissed from the underlying medical malpractice lawsuit during the third and final trial.)

In April 2016, the Florida Third District Court of Appeal affirmed the trial judge’s decision to sanction the doctor. The appeals court noted that the doctor’s “misconduct was willful, deliberate, and intentional and constituted a violation of the trial court’s instruction not to discuss trial matters with any witness or party.” Accordingly, the doctor was ordered to compensate the victim for the attorney’s fees she incurred in preparing for the first trial.

Have You Been a Victim of Medical Malpractice?

This terrible case illustrates why it is essential to work with an experienced Clearwater medical malpractice attorney. You need someone on your side who understands the court system and is prepared to stand up for your rights when a defendant tries to break the rules. Contact the Law Office of Paul B. Genet, P.A., if you have been injured due to medical negligence and require immediate legal assistance.

Legislature Creates Special Rules to Help Doctors, Burden Patients

Florida imposes strict requirements on any injured patient who has a medical malpractice claim. Among other things, Florida law requires 90 days advance notice before the patient can actually file a lawsuit. During this 90-day period, the medical provider (and its insurance company) must conduct an internal review to determine their potential liability. This pre-suit period also allows the victim and the medical provider to conduct “informal discovery” related to the claim.

Prior to 2013, this pre-suit discovery took one of three forms: unsworn statements by the parties, requests for documents or things, or physical and mental examinations. The 2013 law added a fourth method of discovery: interviews with other health care providers who treated the victim. Under this new law, when a patient serves a pre-suit notice on a medical provider, he or she must also authorize the “release of protected health information” to the provider and its insurance company. This means the health care provider accused of malpractice has the right to interview the patient’s other doctors “ex parte,” i.e., outside the presence of the patient or her attorney.

The plaintiff in the case now before the Supreme Court argues these requirements violate her late husband’s right to medical privacy, as well the Florida Constitution’s guarantee of access to the courts and prohibition on “special legislation.” Last July, the Florida First District Court of Appeal rejected the widow’s lawsuit, holding there was no “expectation of privacy” once a patient files a medical malpractice lawsuit, and the new discovery rule was no more burdensome to plaintiffs than the pre-existing requirement of pre-suit notice.

In her preliminary filing with the Supreme Court, the widow argued the Florida legislature overstepped its bounds when it created a new form of discovery. The Supreme Court itself is solely responsible for determining rules of pre-trial discovery, she said, and “the Legislature has no constitutional authority to enact any law relating to practice and procedure.” As to the issue of privacy, the plaintiff’s appeal argues the 2013 law “specifically require claimants to identify immaterial treating health-care providers, which may be revelatory of other health issues a claimant wishes to keep private.” In other words, forcing patients to give potential defendants unfettered access to all of their other medical providers creates an impermissible—and unconstitutional—risk that information unrelated to the alleged malpractice will be disclosed.

The Supreme Court is expected to hear oral arguments in the widow’s appeal later this year.

Get Help from a Florida Medical Malpractice Lawyer

This case illustrates the complexity and difficulty of pursuing a medical malpractice lawsuit in Florida. That is why if you have suffered any injury to due to physician or hospital negligence, it is imperative you get in touch with an experienced Clearwater medical malpractice attorney who understands the system and can ensure your rights are protected. Contact the Law Office of Paul B. Genet, P.A., at 727-510-8802 to speak with a qualified medical malpractice lawyer right away.