In 2013, Florida enacted a statute requiring that a plaintiff in a medical malpractice suit must complete a written authorization form releasing protected health information as a pre-condition to filing a medical malpractice claim.
The statute, which went into effect in July 2013, basically required a plaintiff to give written consent to have the defendant’s medical expert, insurer, adjuster, doctor, and/or attorney interview the plaintiff’s health-care providers without the presence of the plaintiff or his or her attorneys. In legal terms, this is known as ex-parte communication. If a plaintiff refused to make such an authorization, the plaintiff would be precluded from filing a medical malpractice lawsuit.
Last year, a Federal district court judge found that the law would lead to violations of the Health Insurance Portability and Accountability Act (HIPAA), which serves to protect patient privacy and personal health information.
However, a Federal appeals court has just reversed the decision, ruling that the law does not in fact violate HIPAA because patients have a choice about whether to file suit, and therefore whether to make their personal health information available.
The plaintiff in the case was a patient named Glen Murphy, who alleged negligence on the part of his physician, Adolfo Dulay.
“Murphy, and others like him, voluntarily choose to seek redress for grievances through Florida’s judicial system,” wrote the appellate court judges in a 36-page decision.
“By enacting[the section of the malpractice law], 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.”
Ann Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.
- Ammann P. (2014 Oct 13.) “Appeals court upholds disputed part of state medical malpractice law.” Saint Petersblog. Retrieved from: http://www.saintpetersblog.com/archives/162461
- Saunders J. (2014 Oct 13). “Court backs key part of medical malpractice law.” Jacksonville Business Journal. Retrieved from: http://www.bizjournals.com/jacksonville/blog/morning-edition/2014/10/court-backs-key-part-of-medical-malpractice-law.html?page=all