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Federal Judge Rules Florida Medical Malpractice Consent Rule Runs Afoul of HIPAA

Florida LegislatureEarlier this year the Florida legislature made several changes to the state’s medical malpractice law. One provision, found in Florida Statutes 766-1065, required the injured patient in a medical malpractice suit to allow the attorneys for the defendant doctor and his or her insurance company to discuss matters related to the case with any of the patient’s other health care providers, without the patient or his or her attorney being present. Fortunately, this invasive law was recently struck down in federal court. On September 25th, the judge in Murphy v. Dulay held that the Florida law violated federal law, specifically the Health Insurance Portability and Accountability Act (HIPAA). Among other things, HIPAA strengthens patients’ rights to privacy of their “protected health information.” HIPAA states that any patient consent authorizing the release of medical records must be given freely and not under duress. Furthermore, patients who object to the disclosure of personal medical information have the right to complain in a judicial or administrative setting. The court in the present case declared that the “ex parte interviews” under the Florida law would violate HIPAA and granted an injunction prohibiting them from taking place. Although these “interviews” were supposed to be general in nature and not about the patient’s medical condition, the judge said the law was written too broadly, and plus there would be nobody there to monitor what was discussed on behalf of the patient. The Florida Medical Association thinks that the legislature was aware of HIPAA privacy protections when the law was drafted and crafted the law in a way that avoids HIPAA problems, so this case is likely to be appealed. A similar law passed in Georgia in 2005 was nullified by the Georgia Supreme Court in 2007, also on grounds that the state law was preempted by HIPAA.

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