A couple of weeks ago I posted a blog discussing how Section 766.1065, Florida Statutes, the new medical malpractice law that forced malpractice victims to give a release to the defendant allowing the defendant’s lawyers to speak to the patient’s treating doctors without the patient or his/her lawyer being present at the meeting. The law came into effect in July 2013 and one victim of malpractice challenged the ruling in Federal Court in Tallahassee.
After reviewing the new law and hearing the arguments of the parties and the State of Florida, the judge said the new violates the supremacy clause.
I will provide a readers digest version of the law so that you can have a better understanding. In the United States federal law is the supreme law of the land. If a state law violates any tenants of federal law – federal law trumps. Medical malpractice cases are state law claims and are governed by state law. In Florida we have the medical malpractice act that is codified in Chapter 766, Florida Statutes.
The new medical malpractice law that came into effect in July 2013, forced victim’s of medical malpractice who decide to pursue a claim to give up privacy rights and provide the defendant doctor and/or hospital with a release allowing the other side to speak with treating doctors ALONE. So this is the state law. Now to the federal law.
A federal law known as HIPAA – mandates a lot of things regarding insurance coverage and a patient’s privacy right in medical records. HIPAA allows disclosure of a patient’s healthcare records under certain circumstances and one of the circumstances is when the patient freely consents. In the above case, the medical malpractice victim filed an action in federal court saying that he doesn’t freely consent and asking the court to take a look at the law.
The federal judge found the following:
It is declared that an authorization that a patient is required to provide under Florida Statutes § 766.1065 does not authorize a healthcare provider todisclose health information about the patient in an ex parte interview (that is, in an interview when the patient or the patient’s attorney is not present).
The defendants Aldolfo C. Dulay, M.D., and Aldolfo C. Dulay, M.D., P.A., must not ask for or obtain health information regarding the plaintiff Glen Murphy in an ex parte interview (that is, in an interview when the plaintiff Glen Murphy or his attorney is not present), unless the interview is authorized in accordance with 45 C.F.R. § 164.512(e) or Mr. Murphy voluntarily consents.
What does this mean going forward?
Right now, the matter is pending before the 11th Circuit Court of Appeals. If a potential victim of medical malpractice doesn’t want to sign the release, they can object in the state court. There is a risk to objecting because if the 11th circuit eventually finds the law is valid, after the statute of limitations has run, the victim may lose their right to proceed with a lawsuit because they didn’t comply with the law. The second path that could be taken would be for the patient to file a collateral matter in federal court. For instance, if a client of mine chooses this course of action, we would have to file the matter in the United States District Court for the Southern District, a different judge would hear the matter and there could be a different result. The Southern District judge would not be bound by the Northern District judge that ruled in the above case. The third course of action would be to provide the authorization with the the notice of intent, and file an action in the state court, asking the court to enter a protective order forbidding the defendant(s) lawyers from speaking with treating physicians.
Florida medical malpractice law can be complex. If you have any questions about a potential medical malpractice claim you can give me a call on my cell or fill out the internet consultation form on the right hand side of the screen.