Doctor-patient confidentiality is one of the core concepts of a doctor-patient relationship. It requires health care providers to keep a patient’s personal health information private unless consent to release the information is provided by the patient. The purpose of such strict confidentiality is patients routinely share personal information with health care providers. If the confidentiality of this information were not protected, trust in the physician-patient relationship would be diminished. Patients would be less likely to share sensitive information, which could negatively impact their care.

When a worker is injured on the job, the workers comp insurance company (typically) will authorize treatment. When the workers comp insurance company gets involved, there are now several stakeholders interested in the outcome of treatment: the insurance company, the employer, and the employee. While Tampa workers comp attorneys work with the doctor on behalf of the injured workers, there are many agents who work with the doctor on behalf of the employer/carrier: the nurse case manager, the attorney for the insurance company, the adjuster, and other third-party companies. Because there are so many stakeholders, the injured worker’s privacy rights are given up and the free flow of private information is extended to these stakeholders and their agents.

Ex parte communication is a term used to describe one of these other persons speaking or corresponding with the doctor about the treatment of the injured worker without the injured worker’s knowledge. This means that an agent of the insurance company can have a conference with the doctor regarding the patient and the patient will know nothing about it. This seems like a violation of privacy to many—not so much just that the person can speak with the doctor, but that they can do so in a completely “secret” manner. By secret, I mean without notice to the injured worker. You may ask: How is that permitted? [1]

F.S. 440.13(4)(c) sets forth the following:

It is the policy for the administration of the workers’ compensation system that there shall be reasonable access to medical information by all parties to facilitate the self-executing features of the law. An employee who reports an injury or illness alleged to be work-related waives any physician-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation. Notwithstanding the limitations in s.456.057 and subject to the limitations in s. 381.004, upon the request of the employer, the carrier, an authorized qualified rehabilitation provider, or the attorney for the employer or carrier, the medical records, reports, and information of an injured employee relevant to the particular injury or illness for which compensation is sought must be furnished to those persons and the medical condition of the injured employee must be discussed with those persons, if the records and the discussions are restricted to conditions relating to the workplace injury. Release of medical information by the health care provider or other physician does not require the authorization of the injured employee. If medical records, reports, and information of an injured employee are sought from health care providers who are not subject to the jurisdiction of the state, the injured employee shall sign an authorization allowing for the employer or carrier to obtain the medical records, reports, or information. Any such discussions or release of information may be held before or after the filing of a claim or petition for benefits without the knowledge, consent, or presence of any other party or his or her agent or representative. A health care provider who willfully refuses to provide medical records or to discuss the medical condition of the injured employee, after a reasonable request is made for such information pursuant to this subsection, shall be subject by the department to one or more of the penalties set forth in paragraph (8)(b). The department may adopt rules to carry out this subsection.

This statute allows carriers, employers, and defense attorneys free contact with physicians regarding an injured worker—conveying the right hold ex parte communications with physicians and effectively reverses prior case law prohibiting such contact.  Claimants no longer have the right to be present during discussions between employers and carriers and those physicians [see Pierre v. Handi Van, Inc., 717So. 2d 1115, 1117 ( Fla. 1st DCA 1998)].

Courts have held that such ex parte communication with physicians does not infringe on the employees’ right to privacy under the Florida Constitution. This is because the workers’ compensation system transposes dispute resolution from the private law of torts to a publicly administered and regulated system. By presenting themselves to physicians, not only for treatment, but for evaluation and assessment of an injury’s relationship to work, injured workers consent to the disclosure of medical information relating to the claim.

[1] Ex parte communication with an expert medical advisor (EMA) is not permitted.