Making a claim for a personal injury in Florida can be a difficult experience for many people because of the loss of privacy that is required to prove the existence of the injury. Let’s consider the experience of one of our clients in a trip and fall case. For the purpose of this Blog, we will refer to our client as Dolly Garcia, a 49-year-old, married, mother of two, who works for FedEx in its accounting office. One evening last summer, Dolly was visiting a friend for dinner at a condominium or apartment complex in Aventura, where she tripped and fell in the parking garage when she stepped into a pothole that was not visible because of poor lighting.
She was able to get up and make it up stairs to her friend’s apartment, hoping that the fall was not serious. But the pain got worse, overnight she could not sleep, and she woke up to find a large bruise radiating from her buttocks to mid-thigh. She went to work, but about halfway through the day she realized the pain was increasing and making it difficult to sit and stand.
She called her primary care doctor, who had been treating her for the last seven years, but he was “booked solid,” and she could not get an appointment for several weeks. Her doctor suggested she go to Aventura’s ER, where she would most likely be seen within a few hours by an ER doctor.
Not wanting to sit in an ER for hours and not feeling that her pain was an “emergency,” she decided to wait for the appointment the following week and went home early with the hope that some bed rest would help. Instead, the pain increased to the point where she ended up at an urgent care center. X-rays were taken, and she was told that nothing was broken. A prescription was given to her for a narcotic pain medication, and this time a suggestion was made that she see an orthopedic surgeon.
The urgent care staff provided her a name, and the next morning Dolly called to see if he was on her insurance plan. He was, but when she told the doctor’s receptionist that her reason for seeking the appointment was a fall, she was told he did not take “accident cases.”
She then decided to call her primary care doctor and told his assistant that she had been seen at an urgent care center, was on pain pills, and needed and orthopedic evaluation. Her primary care doctor’s office arranged an appointment for her that afternoon, where the primary care doctor ordered an MRI of the back, and referred her to an orthopedic surgeon who would accept her insurance.
The MRI is a diagnostic tool utilized in almost every back or neck injury case to find if there is damage to the soft tissues, ligaments, and other organs. It can show structures of the anatomy that are also seen in X-rays, CT scans, and Ultrasounds, but it can show certain problems that other imaging methods do not reveal. It requires the patient to lie still in a long tube that resembles a space capsule while magnetic waves crisscross the body for about 30 minutes.
The MRI tech did not share with Dolly the results of the test but rather told her she needed to discuss them with her orthopedic doctor at her upcoming appointment.
That afternoon, Dolly went to her dentist for a completely unrelated appointment she had set for a cleaning. The following day she saw the orthopedic surgeon, who told her that the MRI had revealed a herniated disc in her lumbar spine, or lower back.
Herniated disks are the most common injuries other than bone fractures we have seen from people who have been in slip, trip and fall cases in grocery stores, shopping malls, condominiums, apartments and other businesses in Florida.
Disks are the rubbery cushions that lie between the bones or vertebrae of the spine and are commonly described as little jelly donuts that can slip or rupture in an accident. When discs are herniated, clients often complain of pain, numbness, or weakness in an arm or leg. On the other hand, many other people can have herniated disks and experience no pain or symptoms.
The orthopedic surgeon recommended a course of physical therapy and suggested Dolly return in a month for a follow up. Over the next 30 days, she was seen three to five times a week by a physical therapist in the doctor’s office, but he did little to help relieve her pain.
Ultimately, she returned to the doctor, who suggested a series of pain injections or perhaps surgery if the pain did not get better. She started with the injections and got a series of cortisone shots over the course of the next year. During that year she saw her OB-GYN, got a mammogram, and revisited her primary care doctor for the flu. She mentioned her fall to her boss one day, who suggested she seek a consultation with a Miami personal injury lawyer who handles fall down cases.
If Dolly were to consult with me, one of the first things we would tell her is that all her medical records will be required to prosecute her claim, including those from the seven years before the accident, as well as the visits to the dentist, pharmacy, and OB-GYN after the fall. That might infuriate Dolly who, like many clients, does not understand why anything that happened before the fall or treatments unrelated to the fall–such as by her dentist or OB-GYN–are material.
FLORIDA LAW- THE RIGHT TO PRIVACY
And she would be partially right, as was recently published in an oppinion by Florida’s First District Court of Appeal in the car accident case of Poston v. Wiggens: “a patient’s medical records enjoy a confidential status by the right to privacy in Article I, Section 23 of the Florida Constitution.” However, insurance companies and the lawyers who represent them will want to read and examine all of Dolly’s records to look for inconsistencies in her complaints with the hope that she had complained of back pain before the fall, to any doctor, urgent care–even the dentist–so that they can argue that her fall at the apartment was not the cause of her herniated disk.
Florida’s trial courts are charged with balancing the rights of the broad discovery that defense lawyers want against an individual’s competing privacy interest in order to prevent an undue invasion of privacy. The law in Florida is very clear, as any request for medical records should be denied when the court determines that the information requested is neither relevant to any pending claim or defense nor likely to lead to admissible evidence.
And when a court orders that certain records be released that violate a person’s constitutional right to privacy, an appeal is appropriate.
When a client has a medical history that includes a potentially embarrassing or completely irrelevant diagnosis or treatment, we seek protection from the court to try to prevent the disclosure or seek what is called an in camera inspection before those records are released to the defense lawyers. For instance, Florida has recognized that a request for 10 years’ worth of medical records was an irreparable invasion of the right to privacy–but can order an in camera inspection. An in camera inspection is where the judge or a special master appointed by the judge can review certain records to determine if they are appropriate to disclose. We would consider a request like this when our client may have had treatment for a sexually transmitted disease, treatment for addiction, or a termination of a pregnancy.
Unfortunately, in Dolly’s case since she is claiming that her fall caused her back injury, the defense will be entitled to get all of her records since the accident and at least three years’ worth of records from any doctor who treated her before the fall. Fortunately, Dolly is a credible claimant, and her records do not reveal any prior back complaints. But for every Dolly, we encounter a dozen other people who have had prior back or neck injuries or complaints, but for one reason or another fail to disclose that history to healthcare providers. When the failure to disclose a previous injury is intentional, it could lead to the immediate dismissal of their claim. For more information about the effects of giving a false medical history in a car accident case a case in Florida please read my recent blog: “Florida Truck Accident Attorney: The Best Way to Ruin Your Case.”
In conclusion, it is important to remember the following when making a claim for a trip and fall or any type of injury in Florida–give an accurate and honest medical history of all healthcare providers, including those that are not related to your fall, such as a dentist or an OB-GYN, and realize that your previous medical history and records will be discoverable (once your claim is filed) by the insurance defense lawyers, who are eager to find inconsistencies and fraud.
We offer a free consultation to anyone with a possible claim for a slip, trip or fall injury or accident. Please Email me, Spencer Aronfeld, or call our South Florida personal injury attorneys at: 305-441-0440 or Toll Free: 866-597-4529.