Federal Judge Strikes Down Florida Medical Malpractice Consent Rule

By Orlando Personal Injury Attorney on October 18, 2013

In a move applauded by Orlando medical malpractice attorneys, a federal judge recently struck down a key Florida medical malpractice law that required a patient to allow a defending physician’s attorney to informally discuss the case with the patient’s other health care providers. The law allowed such discussions to occur without the patient or their legal representative present. In his ruling, U.S. District Judge Robert Hinkle said that the Florida law violates the patient consent provisions of the federal Health Insurance Portability and Accountability Act (HIPAA). [Murphy v. Dulay 4:113cv378].

Under a previous and longstanding Florida medical malpractice law, a patient seeking to file a malpractice claim against a healthcare provider had to notify the physician, facility or other care provider before filing the suit. However, in a development noted in a few blog posts on this site, Florida lawmakers added a new requirement earlier in 2013 that as of June 1, the defending healthcare provider, as well as their attorney, insurer and adjuster could hold ex parte discussions with the patient’s previous healthcare providers without the patient or their legal counsel being present.

The law stated that these discussions are supposed to be limited to general questions about legal procedures, any potential legal exposure faced by subsequent healthcare providers and how or if testimony in the case could affect their board certifications. In his ruling, Judge Hinkle said that those limitations are written so broadly that there was no way to ensure that these discussions would not cross any legal or ethical boundaries into the patient’s medical condition.

Hinkle said, “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.

In his ruling, Hinkle said that the new Florida law is an “attempt not to comply with the federal requirements, but to circumvent them.”

If you believe that you are a victim of medical malpractice, few Orlando personal injury lawyers have more experience or a better record of success in medical malpractice cases than Mr. Cunningham. He has been a fierce advocate for patients’ rights since he began practicing law in 1977 and has helped many Floridians receive the fair and just compensation they deserve after being injured by negligent healthcare providers. If you would like to schedule a free consultation with Mr. Cunningham to discuss your case, call him today at 877-FL-INJURY (877-354-6587).

James O. Cunningham

Since 1977, personal injury lawyer James Cunningham has provided effective legal advocacy to people who are injured through the negligent actions of another person or entity throughout the Central Florida area. He fights to obtain recoveries for his clients’ physical and emotional pain and suffering and pursues his clients’ personal injury cases with a commitment to excellence and impeccable preparation.