Florida Justice Reform Institute, Logo


Appeals court upholds disputed part of state medical malpractice law

by Phil Ammann - October 14, 2014

On Friday, a federal appeals court upheld part of Florida’s divisive medical-malpractice law, ruling that it does not violate requirements for shielding patient privacy.

Three judges of the 11th U.S. Circuit Court of Appeals overturned last year’s decision from a Tallahassee federal judge.

The decision was a success for the Republican-led Legislature, the Florida Medical Association and other groups that lobbied heavily in the 2013 legislative session to revise the state’s medical-malpractice system.

Under dispute was part of the law allowing “ex parte communications” during medical-malpractice cases. Before filing a malpractice claim, patients are required to sign a form authorizing such communications.

Ex-parte communications allow attorneys representing a doctor in malpractice cases to get personal health information about the patient bringing the suit. Information could come a variety of sources, such as other doctors treating the patient.

Another contention is that the law permits those disclosures without the presence of the patient’s attorney.

Last year, U.S. District Judge Robert Hinkle ruled that the law could lead to violations of the Health Insurance Portability and Accountability Act.

Known as HIPAA, the federal law attempts to restrict disclosure of personal medical information, unless under certain circumstances.

The appeals court disagreed, citing the authorization forms signed by patients.

In the original suit, plaintiff Glen Murphy accused Madison physician Adolfo C. Dulay of negligence.

A 36-page decision by Judge Frank Hull, joined by judges Stanley Marcus and James Hill, said:

“Murphy and others like him voluntarily choose to seek redress for grievances through Florida’s judicial system. 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.”

Ex-parte communications became the foundation of a major medical-malpractice lobbying battle during the 2013 session’ plaintiff’s attorneys fought the proposal saying it would crush patient privacy.

Supporters call it a fairness issue, since ex-parte communications gives defense attorneys access to information that attorneys for plaintiffs’ can review. In addition, they claim the information could aid defense attorneys in making quicker decisions to either settle or advance a case.

The legislature intended to give plaintiffs and defendants in medical liability lawsuits equal access to the same medical fact witnesses,” said William Large, president of the Florida Justice Reform Institute. “Now that the Court has agreed that the required written authorization form is fully HIPAA compliant, doctors who face the specter of defending their reputations will no longer be at a disadvantage.”