Appellate court rules on pre-suit requirement in medical malpractice cases

A blue door with two small holes in it.The United States Court of Appeals for the Eleventh Circuit has upheld a portion of Florida’s medical malpractice law ruling that it does not violate requirements designed to protect a patient’s privacy.

By doing so, the appellate court overturned a ruling last year by a Tallahassee federal court judge who found that the law would result in violations of the Federal Health Insurance Portability and Accountability Act (HIPAA) designed to prevent the disclosure of patients’ personal medical information. HIPAA regulations prohibit the conditioning of medical treatment or healthcare benefits on the execution of a HIPAA authorization.

The case involved a pre-suit requirement in Florida Statute § 766.1065 that the patient execute a written authorization form for release of protected health information. Before a patient can file a medical malpractice claim, they must to sign a form permitting ex parte communications, which allow attorneys representing a doctor in a malpractice case to obtain personal health information about the patient.

The appellate court noted in its ruling that in drafting the law, “the Florida Legislature expressed its intent to make the pre-suit authorization form consistent with HIPAA. Specifically, § 766.1065(3) mandates that the authorization “shall be construed in accordance with the ‘Standards for Privacy of Individually Identifiable Health Information’ in 45 C.F.R. parts 160 and 164†— HIPAA’s Privacy Rule. Id. §766.1065(3).â€

The appellate court found that the patient is the one who chooses to file the suit and decides whether to sign the authorization form. It also noted that there are other instances that are conditioned on the execution of a HIPAA authorization.

“We cannot say that requiring a HIPAA authorization as a condition of suing a health care provider for medical negligence in state court is more coercive than requiring one as a condition of employment or Medicaid-benefit payments, which HIPAA permits. The Florida law does not rise to the level of duress that might somehow invalidate an otherwise valid authorization,†the appellate court noted.

Click here to read the full ruling.

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The Health Law Offices of Anthony C. Vitale