Judge tosses key provision of medical malpractice law

A Florida federal judge recently threw out part of a state medical-malpractice law enacted earlier this year, saying it attempts to circumvent federal law that protects the improper disclosure of patients’ medical information.
U.S. District Judge Robert L. Hinkle concluded that the new law violates the Health Insurance Portability and Accountability Act with a provision that requires a patient, before pursuing a medical-negligence claim, to sign an authorization for the potential defendant ” or the defendant’s counsel, insurers or adjusters ” to interview the claimant’s treating physician without the claimant’s attorney being present.  The ruling came less than four months after Gov. Rick Scott signed the law and was a blow to groups such as the Florida Medical Association, which lobbied heavily this spring for changes in the medical-malpractice system. Meanwhile, the Florida Justice Association trial-lawyers group had long argued that the law would trample on patient privacy.
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Opponents of the law argued that it violates the federal Health Insurance Portability and Accountability Act, of HIPAA, which seeks to prevent disclosure of personal medical information, except in certain circumstances.
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“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,” Hinkle wrote. “Because federal law prohibits ex parte interviews of this kind with exceptions not applicable here, this order holds the statute invalid.”
In the past, supporters have argued that ex parte communications would give defense attorneys access to information that plaintiffs’ attorneys already can review. Along with saying that is a fairness issue, they contended the information could help defense attorneys make decisions more quickly about whether to settle or proceed with cases.  Hinkle acknowledged in his ruling that the state law could have such a benefit, but he wrote that “there are substantial arguments on the other side, too. The arguments on the other side have prevailed at the federal level. And the resulting federal rules expressly preempt conflicting state statutes.”
The case originated from a patient who wanted to sue a doctor for negligence, but felt the new law violated his privacy rights. The trial-lawyer group Florida Justice Association, who initially opposed the state law, backed the federal lawsuit.

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