A recent Florida case emphasizes that lawyers must adhere to state laws in all case proceedings. A Florida appellate panel decided in favor of Dr. Christina Paylan who sued her former attorney, Timothy Fitzgerald, for legal malpractice.
Fitzgerald had forced Dr. Paylan to release a former patient’s medical records to use as evidence during a criminal trial, but failed to obtain the patient’s written authorization formally releasing their medical records. Under Florida law, doctors must receive written authorization from patients before medical records are provided to a third-party requesting the information.
Fitzgerald argued that he had a right to request the patient’s medical records because they had been previously released in the criminal case, and they were used in a state medical board proceeding. However, the court rejected his argument, and said that he needed to have obtained written consent from the patient.
The only evidence of patient release was contained in an email sent from Dr. Paylan to Fitzgerald. In the email Paylan states that the patient has authorized the release of their records. There is no actual written release from the patient included.
This lack of consent may have been overlooked if the law firm had proven that obtaining the patient’s authorization would have been impossible. However, Fitzgerald did not try to argue this point, as he could have contacted the patient directly for authorization.
This case reinforces the fact that lawyers are not above the law. They must follow proper procedures to secure evidence in their case. Obtaining evidence through illegal shortcuts can lead to dismissal of evidence, regardless of its relevance.
If your lawyer has used illegal methods to access information during your case, you may be able to sue them for malpractice. Consider contacting a lawyer who can walk you through the process, and make sure that your rights are protected.