The 11th Circuit has reversed the trial court’s decision in Murphy v. Dulay. As this blog has previously discussed, Florida malpractice law requires a prospective medical malpractice plaintiff to provide pre-suit notice to the prospective defendants, including a list of the injured person’s healthcare providers after the alleged negligence and those seen in the two years immediately prior. The law also requires the prospective plaintiff to provide a signed authorization allowing the healthcare providers to release information to the defense attorneys, defense experts, the liability insurer, and the trier of fact. The authorization also specifically allows the defense to interview the healthcare providers outside the presence of the patient or the patient’s attorney. The trial court found that the Health Insurance Portability and Accountability Act (“HIPAA”) preempted Florida medical malpractice statutes.
The 11th Circuit noted that the statute expresses an intent to conform with HIPAA. Furthermore, the authorization does not apply to health care providers that the plaintiff certifies are not potentially relevant to the case. The plaintiff must provide the inclusive dates of the treatment that is to be withheld. Although the statute requires the authorization to permit ex parte communications between the defense and the health care providers, nothing in the statute requires the providers to agree to an interview. The authorization must inform the plaintiff that the information disclosed pursuant to the authorization may be subject to additional disclosure and may not be protected by HIPAA regulations.
On appeal, the defense argued that the Florida statute was compliant with HIPAA and its regulations. The circuit court analyzed the statute as to the relevant provisions of HIPAA and agreed.