In an earlier blog post, we discussed the potential privacy issues attached to a new medical malpractice law that was signed into effect by Governor Scott this June. Effectively, the defendant practitioner could bypass HIPAA and disclose patient information without the presence of the patient or his/her attorney. Additionally, defense lawyers could speak directly to doctors currently treating the plaintiff’s injuries.
Now – less than four months later – a federal judge has rejected one of the law’s main components. Citing direct conflict with federal privacy laws, U.S. District Judge Robert Hinkle struck down part of the law that allowed defense attorneys (as well as insurers and adjusters) to conduct ex parte interviews with a patient’s other healthcare providers.
Under the original law, patients were required to sign a consent form authorizing these interviews as part of a pre-suit requirement. Hinkle claimed that giving authorization under the new law didn’t show consent, but rather “mandated compliance with state law.” According to Hinkle, this does not comply with HIPAA’s consent rule, which states that any authorization for the release of medical records must be given freely by the patient.
The ruling is currently being reviewed by the Florida Medical Association, a large supporter of the original law. They are hoping the law will be upheld as it was written after the appeal process. The provision regarding expert witness testimony was not part of the case reviewed by Hinkle and has therefore remained intact.
