On September 25, 2013, a federal judge in Florida struck down a part of Florida’s recently enacted changes to its medical malpractice law because it was in conflict with federal law. At issue was Florida Statutes § 766.1065, which took effect on July 1, 2013, that added to the long-standing presuit notice requirement (i.e., that the plaintiff must provide the defendant a presuit notice of the potential claim) by further requiring that the presuit notice be accompanied by an authorization signed by the plaintiff that allows the defendant, the defendant’s attorney, the defendant’s medical malpractice insurance company, and the insurance company’s adjuster to conduct ex parte interviews (i.e., interviews when the patient or the patient’s attorney is not present) of the plaintiff’s other healthcare providers with regard to matters pertinent to the potential medical malpractice claim.
U.S. District Judge Robert L. Hinkle began his September 25, 2013 Order On The Merits by stating, “The plaintiff is a former patient of the defendant doctor. The plaintiff intends to pursue a medical-negligence action against the doctor. The plaintiff asserts that a presuit condition imposed by Florida law is preempted by federal law. 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. Because federal law prohibits ex parte interviews of this kind with exceptions not applicable here, this order holds the statute invalid and enjoins the defendant doctor–and those in concert with him–from conducting ex parte interviews with the patient’s other healthcare providers, except as authorized by federal law.” To read Judge Hinkle’s entire Order On The Merits click here.
Judge Hinkle expressed his concern that “it is a reasonable possibility–though uncertain–that the disclosed information also will include information that is not pertinent to the medical-negligence claim and for which the state-law privilege thus will not have been waived … It is certain that if ex parte interviews occur, information will be disclosed for which HIPAA protections have not been waived.”
Judge Hinkle stated in his Order, “A state statute that authorizes such ex parte interviews in connection with a medical-negligence claim, without the patient’s consent and without the safeguards included in 45 C.F.R. § 164.512(e), is squarely at odds with federal law. The Florida statute is an attempt not to comply with the federal requirements but to circumvent them–allow ex parte interviews without consent and without the court or administrative order (or opportunity to obtain a ruling) that federal law requires. The Florida statute purports to reach this result by requiring the patient to sign an “authorization,” but the authorization is a charade; the only entity granting authority, in any meaningful sense, is the state itself, not the patient … The question is not what federal law should require but what federal law does require. As set out above, federal law prohibits unconsented disclosures of the kind [the defendant] proposes to obtain … Under 45 C.F.R. § 164.508(a)(1), a healthcare provider may disclose a patient’s information in connection with a potential medical-negligence claim against another provider only with the patient’s authorization–that is, with the patient’s consent–or under the safeguards provided by 45 C.F.R. § 164.512(e). The Florida statute allowing ex parte interviews without consent and without the safeguards is contrary to federal law and thus, under 45 C.F.R. § 160.203, expressly preempted.”
Judge Hinkle concluded, “It is declared that an authorization that a patient is required to provide under Florida Statutes § 766.1065 does not authorize a healthcare provider to disclose health information about the patient in an ex parte interview (that is, in an interview when the patient or the patient’s attorney is not present).”
Source Glen Murphy, Plaintiff v. Adolfo C. Dulay, M.D. and Adolfo C. Dulay, M.D., P.A., Defendants. United States District Court for the Northern District of Florida Tallahassee Division, Case No. 4:13cv378-RH/CAS.
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