The Florida legislature made several
changes to its medical malpractice law earlier this year. One of
these changes, which can be found in Florida
Statutes 766-1065, went into effect on June 1st and
required an injured plaintiff in a medical malpractice case to
authorize the defense attorneys, doctors and insurance adjustors to
discuss the case with the plaintiff's other health care providers
without the plaintiff or his or her attorney present. This "consent
rule" was quickly challenged, and on September 25th,
the provision was struck down in federal court. The judge in Murphy
v. Dulay held that the forced consent violated several provisions
of the Health Insurance Portability and Accountability Act (HIPAA).
Specifically, HIPAA protects personal health information by
prohibiting any authorization for release of medical records when the
patient's consent is not given freely and without duress. The law
also provides a way for patients to object to such disclosure through
the courts or an administrative proceeding.
The Florida law required plaintiffs to
authorize these "ex parte interviews" as part of the
pre-suit notification they are required to give the defendant doctor.
The judge held that the law was written too broadly and granted an
injunction prohibiting these interviews. Even though the topics to be
discussed were supposed to be general and not disclose confidential
or protected health information, there would be no way for the
patient to know what was being disclosed, according to the court.
This case may still be appealed to the
11th Circuit Court of Appeals. According to the Florida
Medical Association, the law was crafted to avoid conflicts with
HIPAA. However, it should be noted that the state of Georgia passed a
similar law back in 2005, and that law was nullified
by the Georgia Supreme Court in 2007 on the grounds that it was
preempted by HIPAA.
