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Appellate Court Upholds Key Element of Medical Malpractice Law

A federal appeals court in Florida upheld part of a controversial medical malpractice law in Florida, stating that it does not violate the requirements of patient privacy. The U.S. Court of Appeals for the Eleventh Circuit overturned a ruling made by a Tallahassee judge last year, which focused on the requirement of “ex parte communications” in medical malpractice cases.

Florida Medical Malpractice Law

The rules and guidelines surrounding medical malpractice cases can be found in Chapter 766 of the Florida statutes. The issue in this case pertained specifically to the part of the law which requires patients to sign forms authorizing ex-parte communications before filing malpractice claims. Ex-parte communications are those done without the person or their lawyer present.

For example, in the case of a medical malpractice claim, defense lawyers representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient’s lawyer being present.

Appellate Medical Malpractice Ruling

Last year, federal U.S. District Judge Robert Hinkle found that requiring ex-parte agreements in medical malpractice cases would lead to violations of the federal Health Insurance Portability and Accountability Act (HIPAA), which prevents disclosures of private medical information except in certain, specific circumstances. However, the appellate court this year disagreed with his ruling.

The appellate court disagreed and pointed out that the agreement must be signed by the patient. When referencing the plaintiff in this case, Glen Murphy, who alleged negligent care by physician Adolfo C. Dulay, the three-judge panel noted that “Murphy, and others like him, voluntarily choose to seek redress for grievances through Florida’s judicial system . . . By enacting [the section of the malpractice law regarding ex-parte communications], the state conditioned an individual’s ability to use a state-provided resource to advance medical negligence claims—the state judicial system—upon that individual’s executing a limited HIPAA authorization in a form that complies with HIPAA’s requirements. An individual retains the choice whether to file suit, and therefore whether to sign the authorization form.”

Arguments For and Against Ex-Parte Communications

The fight about ex-parte communications in medical malpractice cases has been on-going since the passage of the law in 2013. Plaintiff’s lawyers have made the argument that requiring these agreements for medical malpractice cases tramples on the rights of the patients’ privacy. However, supporters of the law claim that the rule is a fairness issue because these types of communications would give defense lawyers access to information that the patient’s lawyers can already review. In addition, supporters claim that this will also allow defense lawyers to decide more quickly whether to proceed or settle a case.

Call a Medical Malpractice Lawyer Now

If you or someone that you know has been hurt by their doctor or other medical professional in Tampa, Fort Myers, Orlando, West Palm Beach, or Jacksonville, let the medical malpractice lawyers at The Pendas Law Firm defend your rights in court. Contact us today and we can begin working immediately.

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