State Medical Malpractice Law Preempted by Federal Legislation, Judge Rules

A U.S. district judge has struck down a ruling on a state law, stating it violates provisions of federal legislation designed to protect patient privacy. The ruling on this medical malpractice law could have implications for malpractice claims filed in the future, particularly since it deals with a federal law that could impact any court in the country.

The ruling by U.S. District Judge Robert Hinkle came just months after Florida Governor Rick Scott signed new state laws that significantly changed malpractice procedures in Florida. One of the laws allowed defense attorneys representing a physician to receive medical information about the plaintiff. Specifically, the law allowed for the attorney or an insurance agent to hold “ex parte communications” with the plaintiff’s healthcare providers, without the plaintiff or the plaintiff’s attorney present for the discussion.

New Florida law requires HIPAA authorization

The new Florida medical malpractice law required plaintiffs to file a pre-suit notice prior to the official filing of a claim. This pre-suit notice must include a HIPAA authorization permitting the pre-suit communications. HIPPA, known as the Health Insurance Portability and Accountability Act, was established by the federal government in 1996 for the purpose of protecting patient privacy by prohibiting the sharing of personal medical information without the written consent of the patient.

The new state law has already come under scrutiny as five lawsuits have been filed to challenge the legislation. One of those lawsuits was filed by Glen Murphy, who brought a medical malpractice claim against physician Adolfo C. Dulay. Murphy claims Dulay was negligent in his treatment, and is now seeking legal compensation against the physician. When this new legislation came into play in this case, Judge Hinkle was placed in the position to decide whether state law trumped federal legislation.

State law affects medical malpractice claims

Judge Hinkle ruled in the Murphy case that the Florida medical malpractice law violates the federal provisions of HIPAA. One of the provisions of HIPAA states that an authorization to release medical records to another party must be given by the patient freely, and not under duress. Judge Hinkle determined that the requirement to sign the consent prior to filing a lawsuit eliminates the patient’s ability to voluntarily give consent.

Judge Hinkle also ruled that the limitations of the state law, which required discussions to be restricted to matters pertinent to the case, were too broad to be effectively enforced. In addition, Judge Hinkle noted without an attorney or the plaintiff present at the discussion, there would be no way to know for sure if the discussion was properly limited to the necessary medical information.

“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,” Judge Hinkle stated in his decision.