Florida Judge Protects Patient Privacy In Malpractice Cases

Florida patients taking legal action for medical malpractice have faced a tough choice since tort reform laws passed in 2013. To sue their doctor, patients would need to give up some of their privacy rights and allow the doctor accused of malpractice (and his insurer and attorneys) to speak ex parte to current treating physicians and medical professionals who were providing care after the malpractice

Victims of medical mistakes who file a lawsuit with the assistance of a malpractice lawyer in West Palm Beach will no longer face this choice. U.S. District Judge Robert Hinkle has issued an order striking down the 2013 Florida law as a violation of the Health Insurance Portability Accountability Act of 1996 (HIPAA). This is good news for patients who have been harmed by a doctor and who want to take legal action.

Florida Tort Reform Law Runs Afoul of HIPAA Privacy Rules

Under HIPAA, a patient has the right to meaningful choice regarding who he authorizes to have access to personal health information including medical records.

Florida tort reform laws, however, tried to circumvent HIPAA protection by essentially forcing plaintiffs to sign a blanket authorization allowing defendant doctors and their lawyers in a malpractice case to speak with the patient’s current healthcare providers. Plaintiffs were required to sign the authorization when they provided mandatory pre-suit notification to the doctor being sued.

As Insurance Journal reports, the forced authorization allowed defense attorneys and doctors to talk to current healthcare providers without the patient or his attorney present or even aware of what was being said. These were informal conversations, referred to by the Executive Director of the Florida Justice Association as: “behind-the-back” discussions.

The behind-the-back discussions will no longer be allowed, as Hinkle’s opinion stated that the forced authorization as part of the required pre-suit notification was merely a “charade” masquerading as consent and thus did not comply with HIPAA protections afforded to patients.

Although supporters of the Florida tort reform law argue that the law was narrowly defined to limit discussion to general questions about legal proceedings, Hinkle said that the rules were written so broadly that it was a “virtual certainty” that information protected by HIPAA would be shared.

Tort reform supporters also argued that the law would bring down malpractice insurance premiums and that the law only entitled defendants and their lawyers to information that the plaintiffs’ attorneys already had. These arguments, too, were dismissed because of the clear HIPAA violation, as state laws cannot preempt or take precedence over federal protections provided to patients.

Defense attorneys and doctors accused of malpractice will still be able to speak with a plaintiff’s physicians about the plaintiff’s condition and cause of injury or ill-health. Now that the law is changed, however, the patient and has lawyer have more control over how and when medical information is shared and the discussions between the defendant and plaintiff’s doctor will occur in interrogatories, depositions and on the witness stand rather than in informal secretive “behind-the-back” discussions.

If you’ve been injured as a result of a medical mistake, contact a malpractice lawyer in West Palm Beach. Call David J. Glatthorn today at 800-990-9394 for a free case review.


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