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Federal judge strikes part of new med mal law.

A federal judge threw out part of Florida's new medical malpractice law that allowed defendant health care providers and their representatives to have ex parte communications with a plaintiff's doctors.

Judge Robert Hinkle of the U.S. Northern District of Florida ruled September 25 in favor of a man who is planning to sue a doctor. Hinkle said the law violates the federal Health Insurance Portability and Accountability Act (HIPAA).

The defendant in the case was joined by the Florida Attorney General's Office, which argued the state law did not violate HIPAA.

The ruling did not affect another controversial part of the bill that limits the pool of expert witnesses in a med-mal case.

In the key part of the ruling, Judge Hinkle found that the requirement in F.S. [section]766.106 that requires a plaintiff in a medical malpractice case to allow the defendant ex parte access to the plaintiff's current medical providers was not voluntary permission as required under HIPAA.

Hinkle said there are only two exceptions that might be applicable. One allows an ex parte disclosure in response to a court or administrative order, but he said that had not occurred in this case because state law gives access before a case is formally filed.

The second instance is if the plaintiff has given a voluntary "valid au thorization." The defense claimed that had occurred under the law because the authorization was given as part of the presuit notification.

"[I]s an authorization mandated by state law as a condition precedent to pursuing a medical-negligence action 'valid?' I conclude it is not," Hinkle wrote.

"[T]he Florida system is effectively this: When a patient asserts a medical-negligence claim, the defendant--or the defendant's attorney, insurer, or adjuster--may conduct ex parte interviews of the patient's other health care providers, whether or not the patient consents.

"The Florida statute is an attempt not to comply with the federal requirements but to circumvent them--to allow ex parte interviews without consent and without the court or administrative order (or opportunity to obtain a ruling) that federal law requires. The Florida statute purports to reach this result by requiring the patient to sign an 'authorization,' but the authorization is a charade; the only entity granting authority, in any meaningful sense, is the state itself, not the patient."

Hinkle also rejected the claim that the plaintiff did not have standing or that the case was not ripe. He noted that if the law dissuaded the plaintiff from proceeding, he would have lost the right to pursue his claim, while if he pursued his claim, he risked the loss of privacy provided under HIPAA.

The judge, in addition, noted, "it is a reasonable possibility--though uncertain --that the disclosed information also will include information that is not pertinent to the medical-negligence claim and for which the state-law privilege thus will not have been waived."

Likewise, a claim by defendants that the plaintiff had no private right of action was rejected. Hinkle noted numerous U.S. Supreme Court and 11th U.S. Circuit Court of Appeals opinions disagreed with that view, adding, "The Supreme Court and Eleventh Circuit have said repeatedly that if a Supreme Court decision is to be overruled, the Supreme Court itself, not a circuit or district court, must do the overruling."

The decision was praised by the Florida Justice Association. The case was one of five that FJA members have filed in federal or state courts around Florida.

"While we are pleased with the ruling by the federal court, it comes as no surprise. The Florida Justice Association took on this fight because the legislation was a clear violation of a patient's right to privacy," said FJA Executive Director Debra Henley. "This is a prime example of why the system of checks and balances in our democracy is so important. The ruling is a victory not for our members but for the rights of all Floridians."

The Florida Medical Association, which pushed the new med-mal law, criticized the ruling and said Attorney General Pam Bondi should seek an appeal.

"The FMA is disappointed in the recent ruling by Judge Hinkle regarding the ex parte provision of the 2013 Florida Legislature's medical liability reform law," said FMA President Dr. Alan Harmon.

"The FMA reviewed the entire law, and we still feel that the Florida Legislature took great pains to ensure that this legislation was fully compliant with federal law.

"The FMA disagrees with this ruling and stands ready to assist with an appeal. We are confident that this law will be upheld upon appeal."

Bondi's office, in response to an inquiry from the News, said an appeal will be filed.

The FMA noted that the decision does not have statewide impact and three other cases challenging the disclosure provision are pending.

In a press release, the FMA also said, "The FMA strongly disagrees with Judge Hinkle's decision and believes that it was wrongly decided.

"The Texas Supreme Court reached a very different decision and upheld an almost identical law, finding that it was not preempted by federal HIPAA provisions. We think the reasoning of the Texas Supreme Court will prevail on appeal."

In his ruling, Hinkle acknowledged the Texas case and also a ruling in a Georgia state court that was cited by both sides.

"In my view, for the reasons explained above, the Texas decision was contrary to federal law," Hinkle wrote. "The issue is one of federal law, properly analyzed de novo by a federal court."

The FMA said that Hinkle's decision does not affect the other major provision of the law on expert witnesses.

That provision requires that expert witnesses be in the same specialty as the defendant doctor in a malpractice case. Before the change, state law required that experts be in the same or a similar specialty.

Hinkle made his ruling in Murphy v. Dulay, case no. 4:13cv378-RH/CAS.

The full ruling can be found at www.

By Gary Blankenship

Senior Editor
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Author:Blankenship, Gary
Publication:Florida Bar News
Geographic Code:1U5FL
Date:Oct 15, 2013
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