Earlier this year, Florida legislators introduced a new medical malpractice bill which was subsequently signed into law by Gov. Rick Scott and then immediately challenged by Florida trial attorneys who alleged that it violated the Health Insurance Portability and Accountability Act (HIPAA).

In a recent decision, U.S. District Judge Robert Hinkle agreed with the trial attorneys and struck down part of the new malpractice law.

The portion of the bill that the case focused on was a new requirement that would allow defense attorneys representing physicians to get personal health information from patients’ other doctors without the patients or their attorneys present. Florida has had a long-standing requirement that patients wishing to file a medical malpractice claim had to file a pre-suit notification to the physician being sued.

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The new bill added a requirement (which took effect June 1, 2013) that pre-suit notifications must contain an authorization from patients allowing the defendant doctor, the doctor’s attorney, and insurer to hold discussions with the patients’ previous and subsequent healthcare providers without the plaintiffs or their attorneys present. (Such one-sided discussions are referred to as ex parte).

While the law supposedly limits what can be discussed, Hinkle stated that the limits were too broad to guarantee that discussions would not cross the boundary into talking about patients’ medical conditions. Hinkle also pointed out that forcing patients to sign the authorization as a part of bringing the lawsuit violates HIPAA because the consent is being obtained under duress and not voluntarily.

“Under the Florida system, the signature does not show consent,” Hinkle wrote in his decision. “It shows only mandated compliance with state law.”  He went on to say that the new legislation was an attempt to circumvent federal HIPAA requirements and deprives patients of the right to object or to voluntarily decide to give consent.

While trial attorneys were cautiously optimistic about the decision, the Florida Medical Association (a major proponent of the law) expressed disappointment and a belief that the law will be upheld on appeal. The ruling has already been appealed to the 11th Circuit Court of Appeals. 

The ruling upheld another provision in the new law that requires an expert witness testifying against a physician to be of the same specialty and not just a similar specialty.