Judge tosses key provision of medical malpractice law


The News Service of Florida

A federal judge Wednesday rejected a key part of a new state medical-malpractice law, saying it conflicts with federal requirements designed to prevent the improper disclosure of patients’ health information.

The ruling by U.S. District Judge Robert Hinkle came less than four months after Gov. Rick Scott signed the law and was a blow to groups such as the Florida Medical Association, which lobbied heavily this spring for changes in the medical-malpractice system. Meanwhile, the Florida Justice Association trial-lawyers group had long argued that the law would trample on patient privacy.

The case focused on part of the law that would allow what are known as "ex parte communications" in medical-malpractice cases.

In such communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient’s attorney being present.

Opponents of the law argued that it violates the federal Health Insurance Portability and Accountability Act, of HIPAA, which seeks to prevent disclosure of personal medical information, except in certain circumstances.

"The issue is whether a state, by statute, may require a patient, as a condition precedent to pursuing a medical-negligence claim, to sign an authorization allowing the potential defendant — and the potential defendant’s attorneys, insurers, and adjusters — to conduct ex parte interviews with the patient’s other healthcare providers,’’ Hinkle wrote. "Because federal law prohibits ex parte interviews of this kind with exceptions not applicable here, this order holds the statute invalid."

A spokeswoman said late Wednesday that the FMA, a politically influential physicians group, was reviewing Hinkle’s order.

In the past, supporters have argued that ex parte communications would give defense attorneys access to information that plaintiffs’ attorneys already can review. Along with saying that is a fairness issue, they contended the information could help defense attorneys make decisions more quickly about whether to settle or proceed with cases.

Hinkle acknowledged in his ruling that the state law could have such a benefit, but he wrote that "there are substantial arguments on the other side, too. The arguments on the other side have prevailed at the federal level. And the resulting federal rules expressly preempt conflicting state statutes."

The FMA and allied groups made a top priority during this year’s legislative session of passing a medical-malpractice bill. The final version included the ex-parte communications issue and also placed new restrictions on expert witnesses in malpractice cases. The expert witness issue was not part of the case before Hinkle.

Immediately after the medical-malpractice law took effect July 1, lawsuits were filed in state and federal courts across the state on behalf of people who were considering whether to pursue malpractice cases. The lawsuits attacked the ex parte communications issue.

The plaintiff in Wednesday’s ruling was identified as Glen Murphy, who alleged negligence by defendant Adolfo C. Dulay, a physician, according to the ruling. The state intervened in the case to try to defend the law.

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