Court Upholds Patients’ Privacy Rights, Strikes Down Florida Medical Malpractice Provision

Florida Medical Malpractice

A major piece of Florida’s new medical malpractice law was struck down recently in federal court. The offending provision in Florida Statutes 766-1065 required a plaintiff, when filing a pre-suit notification of a medical malpractice claim, to authorize the defense team (the lawyers, insurance company adjustors, and the defendant doctors themselves) to talk to any of the plaintiff’s other health care providers without the plaintiff or his or her attorney present. According to the judge in Murphy v. Dulay, forcing the plaintiff to “consent” to this practice violated the federal Health Insurance Portability and Accountability Act (HIPAA). Among other things, HIPAA requires that any authorization to release medical records must be made freely and without duress by the patient. Also, without being present, the patient would have no way of knowing if protected health information was being disclosed and so could not reasonably object to any disclosure, another violation of HIPAA rules.

The case is likely going to be appealed to the 11th Circuit Court of Appeals, which covers Florida, Georgia and Alabama. Interestingly, the Georgia legislature passed a similar law in 2005, but the Georgia Supreme Court nullified the law in 2007, on the grounds that the law was preempted by HIPAA.

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