A federal appellate court recently concluded that the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) does not preempt a Florida law that requires aggrieved patients to authorize the release of their protected health information as a presuit condition to suing a medical provider for negligence. See Murphy v. Dulay (11th Cir. Oct. 10, 2014) (opinion available here).

How does this decision affect medical malpractice lawsuits in Florida?

  • In Florida, the presuit notice of intent to initiate a medical malpractice action must also include the authorization required under section 766.1065, Florida Statutes.
  • This authorization will allow a defendant, or his or her attorney, to interview a plaintiff’s treating providers regarding the plaintiff’s alleged injury without the presence of the plaintiff or the plaintiff’s attorney.
  • If a plaintiff’s presuit notice does not include the section 766.1065 authorization, the presuit notice is void, and the plaintiff will forego the ability to maintain a medical malpractice action in Florida state court.
  • Defendants in medical malpractice actions will now have the same access as plaintiffs to treating providers, but it remains to be seen whether treating providers will agree to ex parte interviews with defense lawyers.

To read more information about this case, click here.