Health Insurance Portability and Accountability Act
In a case that is being monitored closely by Orlando medical malpractice attorneys, a federal judge recently ruled that a new state law is contrary to federal law and expressly preempted by the Health Insurance Portability and Accountability Act (HIPAA). Judge Robert Hinkle, U.S. District Court for the Northern District of Florida, recently ruled that a pre-suit requirement for pursuing medical negligence claims is contrary to federal law and the HIPAA. Under Florida Statute § 766.1065, which went into effect on July 1, a plaintiff wishing to pursue a medical negligence claim must comply with several pre-suit requirements. One of the requirements is that the plaintiff must provide the defendant with notice of the potential claim before the suit is filed. The pre-suit notice must also be accompanied by an authorization signed by the plaintiff that allows the defendant to interview the plaintiff’s health care providers.
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].
Just a few weeks after Florida Gov. Rick Scott signed two bills that change how medical malpractice case procedures are conducted, Florida lawyers have filed at least five lawsuits, which challenge the new laws. The new laws stipulate that any medical experts who testify in a malpractice case must be the same medical specialty as the physician who is the defendant in the case. The new laws also allow defense attorneys in malpractice cases to obtain medical information about the plaintiff in the case from subsequent healthcare providers. This provision is the reason that Florida medical malpractice attorneys have filed the lawsuits.