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Federal appeals court upholds Fla. tort reform law.

A federal appeals court has upheld a Florida tort reform law that enables physician defendants to have equal access to plaintiffs' health information, ruling that the state law does not violate federal patient privacy protections.

The 11th U.S. Circuit Court of Appeals decision means Florida doctors can be better prepared for malpractice lawsuits and better able to defend themselves, said jeff Scott, director of legal and governmental affairs for the Florida Medical Association. Before the reform, plaintiffs' attorneys could obtain information from a patient's treating physicians, but defense attorneys could not access the same doctors until the deposition period--and only with the patient's attorney present.

"It's going to level the playing field in medical malpractice cases by giving defendant physicians the same access to crucial expert witnesses that the plaintiff has," Mr. Scott said in an interview.

As part of the 2013 law, prospective plaintiffs must execute a written

form that authorizes defendants to obtain documents and conduct ex parte interviews of the plaintiff's medical providers. The form is a precondition to filing a medical negligence claim.

A patient who planned to sue a Florida family physician asked a federal district court to vacate the rule, arguing that it violated his privacy. The U.S. District Court for the Northern Distiict of Florida conduded the law would result in disclosure of the patient's HIPAA-protected health information without his consent. That court ruled HIPAA preempted the state law. The appeals court overturned. In its opinion, the three-judge panel said the Florida law complies with HIPAA.

"Had the drafters of the HIPAA regulations wished to predude a state legislature from conditioning a public benefit--such as filing a lawsuit--on signing a HIPAA authorization, they could have easily done so, just as they generally prohibited doctors from conditioning medical treatment on signing a HIPAA authorization," the appellate judges stated.

"An individual's decision to sign an authorization prior to bringing a medical negligence claim in state court is not an involuntary one," the appeals court noted. "If an individual does not wish to execute such an authorization, he does not have to [but he is] preduded from using the Florida courts to obtain relief through a medical negligence lawsuit."

Texas and Tennessee have similar statutes. In 2009, the Texas Supreme Court upheld the state's rule; in 2013, the Tennessee Supreme Court followed suit.

Caption: It will level the playing field by giving defendants the same access to expert witnesses that the plaintiff has.

MR. SCOTT On Twitter @legal_med

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Author:Gallegos, Alicia
Publication:Internal Medicine News
Geographic Code:1U5FL
Date:Nov 15, 2014
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