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Talk Amongst Yourselves: HIPAA Does Not Preempt Florida Med Mal Presuit Authorization Law

By Elizabeth F. Hodge & Thomas A. Range on October 17, 2014
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A federal appellate court recently concluded that the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) does not preempt a Florida law that requires aggrieved patients to authorize the release of their protected health information as a presuit condition to suing a medical provider for negligence. See Murphy v. Dulay (11th Cir. Oct. 10, 2014) (opinion available here).

How does this decision affect medical malpractice lawsuits in Florida?

  • In Florida, the presuit notice of intent to initiate a medical malpractice action must also include the authorization required under section 766.1065, Florida Statutes.
  • This authorization will allow a defendant, or his or her attorney, to interview a plaintiff’s treating providers regarding the plaintiff’s alleged injury without the presence of the plaintiff or the plaintiff’s attorney.
  • If a plaintiff’s presuit notice does not include the section 766.1065 authorization, the presuit notice is void, and the plaintiff will forego the ability to maintain a medical malpractice action in Florida state court.
  • Defendants in medical malpractice actions will now have the same access as plaintiffs to treating providers, but it remains to be seen whether treating providers will agree to ex parte interviews with defense lawyers.

To read more information about this case, click here.

Photo of Elizabeth F. Hodge Elizabeth F. Hodge

A former president of the Florida Academy of Healthcare Attorneys, Betsy Hodge concentrates her practice on compliance and regulatory issues affecting health care providers and payers and employer-sponsored health plans. Betsy has significant experience with HIPAA and the HITECH Act and assists covered…

A former president of the Florida Academy of Healthcare Attorneys, Betsy Hodge concentrates her practice on compliance and regulatory issues affecting health care providers and payers and employer-sponsored health plans. Betsy has significant experience with HIPAA and the HITECH Act and assists covered entities and business associates in complying with these laws through the development of policies and procedures, workforce training, analysis and notification of breaches, and assisting with government audits and investigations.  In addition, she counsels her clients on regulatory issues, including state and federal fraud and abuse laws.

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Photo of Thomas A. Range Thomas A. Range

Having spent nearly a decade working for a national biopharmaceutical company, including five years in management, Tom Range possesses invaluable experience in the biotechnology sector, which allows him to better serve his broad client base.  Because he has worked in facilities regulated by…

Having spent nearly a decade working for a national biopharmaceutical company, including five years in management, Tom Range possesses invaluable experience in the biotechnology sector, which allows him to better serve his broad client base.  Because he has worked in facilities regulated by the FDA, the State of Florida, and foreign authorities, Tom understands the challenges facing companies whose success depends on their ability to navigate often-murky regulatory waters.

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  • Posted in:
    Health Care and Life Sciences
  • Blog:
    Health Law Rx
  • Organization:
    Akerman LLP
  • Article: View Original Source

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