Recently, the Eleventh Circuit Court of Appeals (which includes Florida) issued a decision ruling that the Health Information Portability and Accountability Act of 1996 (HIPAA) does not preempt the Florida law requiring claimants in medical malpractice cases to execute a presuit authorization form for the release of protected health information.1
In Murphy v. Dulay2, a patient sued his physician for medical negligence. Pursuant to Florida’s presuit requirements, before he could file the lawsuit, he was required to provide the defendant with an executed medical authorization.
The patient sued the physician in federal court, alleging that HIPAA preempted the presuit authorization requirement because it forced the patient to either waive his privacy rights or, alternatively, give up his right to file a medical malpractice claim. He sought an injunction against compliance with the authorization requirement. The trial court ruled in the patient’s favor, enjoining the physician from obtaining the patient’s health information or conducting ex parte interviews of the treating physicians unless he complied with HIPAA. An appeal followed.
On appeal, the Eleventh Circuit overturned the decision, concluding that Florida’s presuit authorization requirement is not preempted by HIPAA and that the Florida law is consistent with HIPAA. The opinion focuses on the fact that HIPAA does not explicitly require authorizations to be signed voluntarily to be valid; such a requirement is not contained within the statute. The court noted that the state law allowed a plaintiff to revoke his/her authorization (although such a revocation would render the presuit notice retroactively void). HIPAA does not require an authorization to be revoked without consequence.
Thus, Murphy affirms that Florida’s presuit authorization form requirement complies with the HIPAA regulations. Presuit notices in Florida medical malpractice actions must, therefore, include the authorization required under section 766.1065. Otherwise, the claimant will forgo the right to file a medical malpractice action.
Additionally, defendant health care providers now have ex parte access to a potential plaintiff’s treating physicians. It is unclear at this juncture whether the treating physicians will agree to these ex parte interviews. As discussed in a previous article, if a treating physician is requested to attend one of these interviews, the physician should consult with his/her employer or insurance carrier to determine if legal measures could be taken to protect his/her interests.