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Florida Court Upholds Medical Malpractice Reform

A federal appeals court has overturned the ruling of a U.S. District Court judge, stating that the new medical malpractice rule which requires ex parte communications in litigation does not violate patient privacy requirements. This ruling overturned the decision last year where U.S. District Judge Robert Hinkle held that the law could lead to violations of the Health Insurance Portability and Accountability Act (HIPAA).

New Florida Medical Malpractice Law

The new Florida medical malpractice law went into effect on July 1 last year. Codified as Florida Statute section 766.1065, the law requires that a person suing for medical malpractice must release a written authorization form for protected health information to the opposing party as a pre-condition to filing a medical malpractice claim.

In addition, the statute specifically requires that the authorization expressly allow the defendants of the case, which can include the doctor, insurers, adjusters, experts, and attorneys, to interview the injured person’s health care providers without their presence their attorney. These are known as ex parte communications.

Florida Case Challenging the Law

An injured patient suing his doctor for medical malpractice challenged the new law in the case Glen Murphy v. Adolfo C. Dulay, M.D. (Murphy). The facts of the case were undisputed by the court – Glen Murphy was a patient of Dr. Adolfo Dulay and received medical treatment from him. Mr. Murphy was unhappy with the sub-par level of care that he received, and he wanted to sue for medical malpractice.

As required by Florida law, Mr. Murphy retained experts that were ready to testify that Dr. Dulay’s medical treatment fell below the standard of care required. However, Mr. Murphy still had to comply with Florida’s new law requiring the HIPAA disclosure forms for Dr. Dulay and his attorney. This requirement was then challenged in court.

The District Court ruled in favor of Mr. Murphy. The judge held that Florida law cannot require an injured patient, as a requirement for pursuing a medical malpractice claim, to sign a HIPAA authorization allowing the potential defendant, in addition to the potential defendant’s attorneys, insurers, and adjusters, to conduct ex parte interviews with the injured patient’s other healthcare providers. Furthermore, the judge held that because federal law prohibits ex parte interviews of this kind the judge ruled that new statute was invalid under federal law.

Citing Chapter 45, section 164.508(a)(1) of the Code of Federal Regulations, a healthcare provider may disclose a patient’s information in connection to a potential medical malpractice claim only with the patient’s authorization and consent, or within certain exceptions in other sections of the law that are not relevant to the issue in Florida. The Florida statute allowing ex parte interviews without consent and without safeguards is contrary to federal law and thus expressly preempted.

Ruling of the Court

The Eleventh Circuit Court of Appeals disagreed, and it concluded that the authorization form required in the new law complies with regulations set forth in HIPAA. Furthermore, they stated that if the drafters of the HIPAA regulations wished to preclude the state from conditioning a public benefit, in this case filing a lawsuit, on signing a HIPAA authorization, they could have easily done so. For example, the law generally prohibits doctors from conditioning medical treatment on signing a HIPAA form.

The Court of Appeals continued its ruling by stating that Florida medical malpractice plaintiffs voluntarily choose to sue for medical malpractice compensation through Florida’s court system. By enacting the new law in section 766.1065, Florida conditioned an individual’s ability to use the state’s court system upon the signing of a limited HIPAA authorization form for the opposing party that complies with HIPAA’s requirements. The injured individual is allowed to choose whether to file a lawsuit and therefore whether to sign the HIPAA form.

Impact of the New Malpractice Law

Advocates for and against the new law each have their own opinions about how the new HIPAA release requirements will affect future medical malpractice cases. On one hand, proponents for the new law point to Texas and Tennessee passing similar laws, with the Texas Supreme Court upholding the state’s rule in 2009 and Tennessee following suit in 2013. The biggest advocates for the passage of this law in Florida included the republican legislature, the Florida Medical Association, and other major health groups.

They claim that the mandated release for ex parte communications will level the playing field in medical malpractice cases by giving defendant physicians the same access to crucial expert witnesses that the plaintiff has. In addition, advocates for the law claim that it will allow Florida doctors to be better prepared for medical malpractice lawsuits and be able to better defend themselves against claims. Furthermore, they claim the information could aid defense attorneys in making quicker decisions to either settle or advance a case.

However, advocates against the new 2013 law state that it effectively destroys patient privacy that HIPAA was designed to protect if the patient wishes to sue a medical professional for medical malpractice. They point out that defense attorneys can still access the information during the discovery period of a medical malpractice case through the use of depositions, while the plaintiff’s attorney is present. Furthermore, they claim that a patient’s right to privacy regarding their medical history is far more important than the defense’s right to learn about the patient’s relevant medical history a little faster, and without the patient’s attorney.

Contact a Florida Medical Malpractice Attorney Today

The Court of Appeals upholding the new Florida medical malpractice law has the potential to cause drastic changes in the way that these types of cases are handled. If you or someone that you know has questions about how the new Florida medical malpractice law may affect your case or has been injured by a medical professional in Orlando, Tampa, Fort Myers, Jacksonville, or West Palm Beach, let the experienced attorneys at The Pendas Law Firm help. Reach out to us today to learn how we can help you.

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