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Court Backs Key Part of Medical Malpractice Law


A federal appeals court Friday upheld part of a controversial Florida medical-malpractice law, saying it does not violate requirements aimed at protecting patient privacy.

A three-judge panel of the 11th U.S. Circuit Court of Appeals overturned a ruling last year by a Tallahassee federal judge. Friday's decision was a win for the Republican-controlled Legislature and groups such as the Florida Medical Association, which lobbied heavily during the 2013 legislative session for changes in the medical-malpractice system.

The dispute focuses on part of the law that would allow what are known as "ex parte communications" in medical-malpractice cases. The law requires patients to sign forms authorizing such communications before filing malpractice claims.

In ex parte communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient's attorney being present.

U.S. District Judge Robert Hinkle last year found that the law would lead to violations of the federal Health Insurance Portability and Accountability Act, or HIPAA, which seeks to prevent disclosure of personal medical information, except in certain circumstances.

But the appeals court disagreed, pointing, in part, to the authorization forms that would be signed by patients. The plaintiff in the case is a patient, Glen Murphy, who alleged negligence by Madison physician Adolfo C. Dulay. The state intervened in the case to defend the law.

"Murphy, and others like him, voluntarily choose to seek redress for grievances through Florida’s judicial system,'' said the 36-page decision, written by Judge Frank Hull and joined by judges Stanley Marcus and James Hill.

"By enacting (the section of the malpractice law), the state conditioned an individual's ability to use a state-provided resource to advance medical negligence claims -- the state judicial system -- upon that individual's executing a limited HIPAA authorization in a form that complies with HIPAA's requirements. An individual retains the choice whether to file suit, and therefore whether to sign the authorization form."

The ex-parte communications issue was at the center of a major medical-malpractice lobbying fight during the 2013 session, with plaintiffs' attorneys fighting the proposal and saying it would trample patient privacy.

Supporters of the law argued it was a fairness issue, because ex parte communications would give defense attorneys access to information that plaintiffs' attorneys already can review. Also, the supporters said the information could help defense attorneys make decisions more quickly about whether to settle or proceed with cases.

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