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Federal Law Trumps Florida Medical Malpractice Consent Law

U.S. District Judge Robert Hinkle recently struck down a key Florida medical malpractice law which forced patient to allow a defending doctor’s attorney to informally discuss the case with the patient’s other doctors or health care providers. The law allowed those discussions to take place without the patient or their representative being present.

The judge’s ruling yesterday is problematic for the Florida Medical Association. They lobbied heavily for the changes to the state’s medical malpractice system. The Florida Medical Association expressed disappointment in Hinkle’s ruling. “The FMA reviewed the entire law and we still feel that the Florida Legislature took great pains to ensure that this legislation was fully compliant with federal law,” said FMA President Alan Harmon in a statement. “We are confident that this law will be upheld upon appeal.”

Florida Justice Association Executive Director Debra Henley said Hinkle’s ruling did not surprise her, although she cautioned it remains to be seen what will happen as the case is appealed. “When HIPPA passed I predicted it would end these behind-the-back discussions between a defending physician’s insurer and the patient’s other treating physicians,” said Henley.

Hinkle ruled the state law violates patient consent provisions detailed within the federal Health Insurance Portability and Accountability Act (HIPAA). [Murphy v. Dulay 4:113cv378]. Under previous law, a patient wanting to file a medical malpractice claim against a physician had to give pre-suit notification. Earlier this year, a new requirement was added stating pre-suit notification must include the patient’s authorization allowing a defending doctor, their attorney, insurer and adjuster to hold discussions with the patient’s previous and subsequent health care providers without the patient or their attorney.

The law does state that discussions should be limited to general questions about legal procedures, potential legal exposure faced by subsequent treating health care providers, and how testimony could affect board certifications. However, those particular limitations are extremely broad. There is no guarantee that boundaries wouldn’t be crossed and that the patient’s medical condition wouldn’t end up being discussed, especially if a representative for the patient is not present. “The subject of the interview would be limited to matters pertinent to the medical-negligence claim, but nobody would be there to determine pertinence or enforce the limitation,” stated Hinkle. He noted that just because Florida lawmakers require patients to sign the consent form, it does not supersede two provisions of the federal HIPPA law.

First, HIPPA puts restriction in place on the disclosure of a patient’s medical information. Patients who object to their personal medical information being released have the opportunity to object in a judicial or administrative setting.

Second, HIPPA also states that even if a patient signs a valid authorization allowing the release of medical records, the authorization must be given freely and not under duress. The Florida law, which mandates that patients sign a consent authorization as part of the requirements for pre-suit in medical malpractice claims, completely eliminates the HIPPA provision giving the patient the chance to object or choose to sign a consent form. Hinkle opined that under the Florida system, the signature on a consent form does not actually show consent. Rather, it shows mandatory compliance with the existing law. In Hinkle’s opinion, the way the Florida law serves not as an attempt to comply with HIPPA and federal requirements, but rather it provides a way for them to circumvent the federal requirements.

An appeal is likely to occur, and time will tell if Hinkle’s ruling will stand. If you suspect that you or a loved one may have been injured due to the negligence of a doctor, contact one of the aggressive and qualified attorneys at Sibley Dolman Gipe Accident Injury Lawyers, PA. (727)451-6900. More information is available on our website, https://www.dolmanlaw.com/practice-area/medical-malpractice/