Florida Medical Malpractice Consent Rule Preempted By Federal Law, Says Judge

By | October 2, 2013

A federal judge has struck down a key Florida medical malpractice law that required a patient to allow a defending physician’s attorney to informally discuss the case with the patient’s other health care providers.

The law would have allowed those discussions to take place without the patient or their representative being present.

U.S. District Judge Robert Hinkle ruled the state law violates the patient consent provisions of the federal Health Insurance Portability and Accountability Act (HIPAA). [Murphy v. Dulay 4:113cv378]

Under previous longstanding law, a patient seeking to file a medical malpractice claim against a physician had to provide the physician with a pre-suit notification.

However, earlier this year Florida lawmakers added a new requirement that as of June 1, the pre-suit notification must include the patient’s authorization allowing a defending physician, the physician’s attorney, insurer and adjuster to hold ex parte discussions with the patient’s previous and subsequent health care providers without the patient and/or their attorney being present.

The law states those discussions are supposed to be limited to general questions about legal procedures, the potential legal exposure faced by the subsequent treating health care providers, and the how any testimony could affect their board certifications.

Hinkle noted, however, that those limitations are so broad there is no way to guarantee that they would not cross the boundary into the patient’s medical condition.

“The subject of the interview would be limited to matters pertinent to the medical-negligence claim, but nobody would be there to determine pertinence or enforce the limitation,” opined Hinkle.

More to the point, noted Hinkle, that just because Florida lawmakers mandates that patients sign the consent form, it does not supersede two provisions of the federal HIPPA law..

The first HIPPA provision cited by Hinkle places restrictions on the disclosure of a patient’s medical information. For example, under HIPPA, patients who object to the release of personal medical information have the ability to object in a judicial or administrative setting.

A second HIPPA rule states that even if a patient signs a valid authorization allowing the release of medical records, the authorization must be given freely and not under duress.

By mandating that a patient sign the consent authorization as part of the pre-suit requirement, the new Florida law eliminates a patient’s ability to object or voluntarily decide whether to give consent.

“Under the Florida system, the signature does not show consent,” wrote Hinkle. “It shows only mandated compliance with state law.”

He said the Florida statute is an “attempt not to comply with the federal requirements, but to circumvent them.”

The trial bar’s Florida Justice Association Executive Director Debra Henley said she was not surprised by Hinkle’s ruling, although she cautioned it remains to be seen what will happen as the case is appealed.

“When HIPPA passed I predicted it would end these behind-the-back discussions between a defending physician’s insurer and the patient’s other treating physicians,” said Henley.

The Florida Medical Association, a main proponent of the law, expressed its disappointment in Hinkle’s ruling.

“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,” said FMA President Alan Harmon in a statement. “We are confident that this law will be upheld upon appeal.”

Although the federal ruling stuck down the law that had allowed ex parte discussions between a physician’s attorney and a patient’s other health care providers, it did keep intact another provision of the reform act requiring an expert medical witness testifying against a physician to be engaged in the same specialty. Prior to the law change, the witness could be in the same or similar specialty and the courts had the broad authority to decide what constituted a similar specialty.

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