A new part of Florida’s medical malpractice law has been voided by a federal judge on the grounds that it is pre-empted by HIPAA. The law, passed during the 2013 legislative session and effective only on July 1 2013, requires, as a pre-condition to filing a malpractice claim, an aggrieved patient to sign an authorization that allows the potential defendant physician, the defendant’s counsel, and the defendant’s insurer to speak with the patient’s treating physicians without notice or the presence of the patient or patient’s counsel. Judge Robert L. Hinkle (Northern District of Florida) noted that HIPAA requires such third party interviews or information to be obtained only with the patient’s proper authorization, or a court or administrative order issued after an opportunity to be heard on the propriety of the disclosures. The authorization obtained under Florida’s law to allow such ex parte interviews is not a proper authorization as contemplated by HIPAA, but, rather, only “mandated compliance with state law,” according to Judge Hinkle. “The authorization is a charade; the only entity granting authority, in any meaningful sense, is the state itself, not the patient,” according to Judge Hinkle’s ruling. The Judge further commented that, although proponents of the law may be correct in their position that the law provides important benefits, it was not his job to evaluate the competing policy arguments. His task was simply to follow the federal rules. In this case, federal law trumped Florida’ statute because Florida’s law weakened protections provided under HIPAA. Plaintiff’s attorneys were not surprised by the ruling as they claimed “there was no way to reconcile the Florida statute with HIPAA’s very straightforward requirements that put control over private health information in the hands of the patient absent a court order where there was an opportunity to object.” The Florida Medical Association, which lobbied in favor of adoption of the Florida statute, vowed to appeal the decision. The defendant, Dr. Adolfo C. Dulay did just that on Monday, September 30th when an appeal was filed with the Eleventh Circuit Court of Appeals.
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