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Court: Florida malpractice law doesn't violate patient privacy

The Florida Medical Association and Republican state legislators have racked up a victory in a legal dispute involving Florida's medical malpractice law. The 11th U.S. Circuit Court of Appeals ruled this month that the law does not violate patients' privacy rights.

The federal appeals court decision overturns an earlier ruling by a federal judge in a case brought against a Florida physician. That judge determined that provisions in the law could allow medical professionals to violate the Health Insurance Portability and Accountability Act. That federal law, commonly known as HIPAA, limits the circumstances under which a patient's medical information can be disclosed.

The issue of "ex-parte communications" in malpractice cases had been the subject of intense lobbying by the FMA and other groups. They argued that attorneys for defendants in malpractice cases should have the right to access personal health information on the plaintiff.

Under the malpractice law, patients are required to sign an authorization form allowing such communications before they can file a malpractice suit. This authorization allows defendants' attorneys to obtain medical information on the plaintiff that is accessible to the plaintiff's attorneys. This can come from sources such as other physicians.

Among those on the other side were medical malpractice attorneys. They argued that such communications violated the right to privacy of patients who sue negligent or incompetent medical professionals.

The three-judge federal appeals court determined that the required authorization form was HIPAA compliant. Therefore, if a patient signed it, it was not a HIPAA violation for the defense to access the plaintiff's medical information. In the decision, the court noted that malpractice plaintiffs "voluntarily choose to seek redress for grievances through Florida's judicial system." The decision further pointed out, "An individual retains the choice whether to file suit, and therefore whether to sign the authorization form."

It was not reported whether the original plaintiff in this case will try to take the case further up the judicial ladder. In the meantime, people who are considering filing a malpractice suit should discuss the information that would be available to the defendant should they decide to file suit. The nature of medical malpractice suits often necessitates the disclosure of very personal information in court. Potential Florida plaintiffs need to weigh the advantages of getting justice against concerns about the information that will be available to the defendants.

Source: SaintPetersBlog, "Appeals court upholds disputed part of state medical malpractice law" Phil Ammann, Oct. 13, 2014

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