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Florida Medical Malpractice Consent Rule Preempted By Federal Law, Says Judge

Medical malpractice law in Florida reached a significant turning point last week when a federal judge struck down a key part of a state law that required a patient to allow a defending physician’s attorney to informally discuss the case with the patient’s other health care providers – even in the absence of patient or their legal representative.

According to U.S. District Judge Robert Hinkle, who presided over the case, the state law violates the patient consent provisions of the federal Health Insurance Portability and Accountability Act (HIPAA). The law would have required a patient seeking to pursue a medical malpractice claim to submit a broad medical authorization allowing the defendant doctor and their lawyers to access the patient’s medical records and discuss the patient’s medical history without the presence of the patient or their attorney.

But Judge Hinkle found that those limitations are so broad that they don’t ensure the privacy of the patient’s medical condition, especially with no one being there to enforce the limitation. This conflicted with two HIPPA provisions that deal with patient consent and patient privacy rights, with the law found to be mandating patients to accept this arrangement rather than freely agreeing to it.

However, his ruling did preserve another important part of the law, which required an expert medical witness testifying against a physician to be engaged in the same specialty as the defendant doctor. Previously the expert witness could be in the same or similar specialty as the defendant, with the courts having broad authority to decide the criteria.

You can read The Leto Law Firm’s previous discussions about this law and how it came to be enacted in our blogs from August 13, 2013, entitled “Florida Attorneys Challenging Medical Malpractice Law” and our blog from January 21, 2013 entitled “Florida Supreme Court protects doctor-patient confidentiality”.

It remains to be seen whether this law will be appealed or whether Florida lawmakers will find a way to work around it. Regardless, Justin Leto and his team remain on top of all the latest legal developments to ensure you’ll receive only the most effective assistance. If you’re looking for only the most professional Miami Personal Injury Lawyer or medical malpractice expert, call 305-577-8448.