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Sunday, July 14, 2024 | Back issues
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Presuit Disclosure Rule in Florida Doesn’t Fly

TALLAHASSEE, Fla. (CN) - A malpractice defenant cannot hold ex-parte interviews with other health care providers of his former patient, a federal judge ruled.

Glen Murphy wants to sue his former doctor, Adolfo Dulay, alleging that he was injured through the negligent care he received from Dulay and his practice.

In the federal complaint filed in in Tallahassee, Fla., however, Murphy objected to a new requirement in Florida law that may allegedly lead to unwarranted and unlawful disclosure of his personal medical information.

Under Florida law related to such cases, a potential plaintiff in such cases must provide the intended defendant with notice of his intent to file a suit, and, at the same time, provide that defendant with a signed authorization allowing he -- or his attorney, insurer or adjuster - to conduct ex parte interviews of the plaintiff's other healthcare providers, limited to matters pertinent to the potential medical-negligence claim.

The latter requirement is a new provision of Florida law, and in theory, the subject of these interviews would be limited to matters pertinent to the medical-negligence claim.

In his complaint Murphy contended there are two problems with the new law - the provision doesn't provide for anybody to be at the interview to determine pertinence or enforce the limitation - and even if it did, the requirement is contrary to federal law - specifically, the privacy rules promulgated by the Health Insurance Portability and Accountability Act.

U.S. District Judge Robert Hinkle agreed.

In his opinion, Hinkle said so long as the plaintiff in a potential medical negligence claim authorizes its release, a healthcare provider can disclose the patient information, to the potential defendant's representative.

However, Hinkle wrote, that disclosure must comply with federal rules and be made with certain conditions.

"Left to their own devices, without regard to HIPAA, some state courts would allow such interviews, some would not," Hinkle continued. "But again, the policy arguments on one side or the other are not controlling. The question is not what federal law should require but what federal law does require. As set out above, federal law prohibits unconsented disclosures of the kind Dr. Dulay proposes to obtain."

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