Florida Court Invalidates Ex Parte Communication Provision of Florida's Medical Malpractice Law.


(posted 12/15/13)


In June 2013, provisions of Florida’s medical malpractice statutes were amended: (i) expert witnesses’ qualifications are now limited to those who have “practiced in the same exact specialty thats being litigated. ”; and (ii) a plaintiff/patient’s (“patient”) pre-suit notification must authorize a defending physician, the physician’s attorney, insurer and adjuster to hold ex parte discussions with the patient’s previous and subsequent health care providers without the patient and/or their attorney being present.


 While the new pre-suit notification and authorization for ex parte communication tried to even the playing field and allow defense lawyers’ access to the patient’s health information to assist in evaluating a case, U.S. District Judge Robert Hinkle recently invalidated this notification on the basis that it violates the patient consent provisions of the federal Health Insurance Portability and Accountability Act (HIPAA). [Murphy v. Dulay, 2013 WL 5498140 (N.D. Fla.)]. In his order, Judge Hinkle, asked whether Florida could legally require a patient to authorize such a disclosure as a condition for pursuing a medical malpractice claim. Recognizing that Federal HIPPA law preempts conflicting state law, he ruled that the new provision of the defense attorney's ex parte rights was invalid.


 While Florida’s new pre-suit notification is supposed to be limited to general questions about legal procedures, Judge Hinkle noted there is no way to guarantee that the ex parte inquiry would not cross the boundary into the patient’s medical condition.  “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,” opined Hinkle.


 Judge Hinkle also noted that just because Florida lawmakers mandate that patients sign the consent form, it does not supersede two provisions of the federal HIPPA law.  The first HIPPA provision cited by Hinkle places restrictions on the disclosure of a patient’s medical information. For example, under HIPPA, patients who object to the release of personal medical information have the ability to object in a judicial or administrative setting.  A second HIPPA rule 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.  Under Florida’s new pre-suit notification, a patient does not have the ability to object or voluntarily decide whether to give consent.  “Under the Florida system, the signature does not show consent,” wrote Hinkle. “It shows only mandated compliance with state law.”  He said the Florida statute is an “attempt not to comply with the federal requirements, but to circumvent them.”


 While we are not surprised by Hinkle’s ruling, it remains to be seen whether Florida’s new pre-suit notification and authorization for ex parte communication will be upheld upon appeal.  If you should have any questions on any particular matters involving these issues, please do not hesitate to contact Gary R. Shendell at gary@shendellpollock.com or Kenneth S. Pollock at ken@shendellpollock.com.




 1 Prior to the law change, the expert witness could practice in the same or similar specialty and the courts had broad discretion to decide what constituted a similar specialty.




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