Did the 11th circuit get it right upholding the disputed Florida med mal law regarding HIPPA?

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MedicalLawyer

Recently, the 11th U.S. Circuit Court of Appeals upheld part of the challenged Florida medical-malpractice law, finding it does not violate HIPPA and patient privacy.  The three-judge panel overturned a ruling last year by a Tallahassee federal judge.  The challenge focused on part of the law that would allow what are known as “ex parte communications” in medical-malpractice cases. The law requires patients to sign forms authorizing such communications before filing malpractice claims.  During these ex parte communications, a defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information comes from other doctors who treated the patient, and the information would be provided without the plaintiff’s lawyer or plaintiff being present.

Murphy contended that the provision conflicts with privacy requirements under HIPAA and that it should be preempted by the federal regulations under the supremacy clause. He also argued that the requirements coerced would-be plaintiffs to provide the waivers.   U.S. District Judge Robert L. Hinkle agreed, finding in September 2013 for Murphy and describing the authorization as a charade that takes meaningful authorization out of the hands of the patient and gives it to the state.

But the Eleventh Circuit saw things differently. HIPAA provides for disclosure if the patient gives a valid written authorization that provides a long list of specific elements, such as description of the information and the purpose of the disclosure, as well as notice that the patient has a right to revoke the waiver, the panel said.  “Murphy, and others like him, voluntarily choose to seek redress for grievances through Florida’s judicial system,” said the 36-page decision, written by Judge Frank Hull, Stanly Marcus and James Hill.   “By enacting (the section of the malpractice law), the state conditioned an individual’s ability to use a state-provided resource to advance medical negligence claims — the state judicial system — upon that individual’s executing a limited HIPAA authorization in a form that complies with HIPAA’s requirements. An individual retains the choice whether to file suit, and therefore whether to sign the authorization form.”

So, this ruling begs the question – Is your medical information private in Florida? Not if you file a medical malpractice claim…

If you would like to read the actual medical malpractice presuit law, click here:  http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0766/Sections/0766.106.html

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