Physicians, hospital administrators and other medical providers should be wary of claims of violation of Florida's Consumer Collection Practices Act by attorneys representing their patients.
Here's what you need to know:
The Florida Consumer Collection Practices Act (§559.72, Florida Statutes) penalizes any communication by a creditor to a debtor after the creditor knows or should know the debtor is represented by a lawyer.
Crafty lawyers are targeting physician’s offices, hospitals and other medical professionals by sending an innocuous “notice” that they have been hired by a patient, and directing the medical provider to cease all further direct communication with the patient.
The patient's lawyer’s “notice” letter is usually sent via fax, rather than certified mail, often in the hope it will get lost in the sea of other correspondence.
The “notice” is devoid of any mention of the statute and does not advise the potential penalties the physician may face in the event of noncompliance.
Invariably, the medical office sends an account statement to the patient following the office’s unknowing receipt of the “notice” and patient's attorney pounces – advising the office that it is violation of the statute and liable for $1,000 in statutory damages, in addition to attorney’s fees.
Many medical practices are browbeaten into settling these demands for $4,000 - $5,000 to avoid the expense of a potentially negative result at trial.
What they don't tell you
What these lawyers don’t say, and what many medical providers don’t know, is that the statute includes an exception to protect well-meaning creditors who inadvertently violate the “no-communication-after-an-attorney-is-hired” rule.
Called the “bona fide error” exception, the provision excuses a creditor who sends a communication after notice of a patient’s decision to hire an attorney under specific circumstances.
Real-world examples
In two recent cases, Gunster clients gave the patient's counsel notice that the violation of the statute was inadvertent and fell within the protection of the “bona fide error” exception. Prior to trial, plaintiff’s counsel in both cases told us the exception did not apply to the facts of our case and said we would never win at trial. Yet, in fact, we won both cases, including a reimbursement of all attorney’s fees expended by our client.
Don't let it happen to you
Based on our successful argument before Florida judges, we know exactly how to direct clients on how best to:
- set up systems to receive attorney notices;
- train office personnel to process the notices (a requirement under the statutory exception); and
- attack a lawyer’s proof (or lack thereof) when bringing these claims
Let us know if we can help you with these or related matters by contacting Earnest DeLoach, Bruce Lamb, or any member of Gunster's health law practice.
