In the 2013 the Florida legislature, was occupied by Republicans who maintained control over both the Senate and the House. Their Intentions were to take advantage of the opportunity by pushing through legislation in the very best interest of insurance companies and in the worst interest of consumers. By sheer dogma and numbers, Republican legislators prevailed on several fronts.
One of those successes was the passing of new medical malpractice legislation making it ever more difficult for injured patients to bring negligence cases against the insurance companies of health care providers.
The law was designed to, at least in part, position a patient’s treating medical providers against the patient. It is Florida Statute 766.105 and it sets forth:
(1) Presuit notice of intent to initiate litigation for medical negligence under s. 766.106(2) must be accompanied by an authorization for release of protected health information in the form specified by this section, authorizing the disclosure of protected health information that is potentially relevant to the claim of personal injury or wrongful death. The presuit notice is void if this authorization does not accompany the presuit notice and other materials required by s.766.106(2).
Under Florida Statute 766.106, the prospective defendant’s attorneys may conduct interviews of the injured patient’s treating physicians for the past (2) years:
Interviews of treating health care providers.—A prospective defendant or his or her legal representative may interview the claimant’s treating health care providers consistent with the authorization for release of protected health information. This subparagraph does not require a claimant’s treating health care provider to submit to a request for an interview. Notice of the intent to conduct an interview shall be provided to the claimant or the claimant’s legal representative, who shall be responsible for arranging a mutually convenient date, time, and location for the interview within 15 days after the request is made. For subsequent interviews, the prospective defendant or his or her representative shall notify the claimant and his or her legal representative at least 72 hours before the subsequent interview. If the claimant’s attorney fails to schedule an interview, the prospective defendant or his or her legal representative may attempt to conduct an interview without further notice to the claimant or the claimant’s legal representative.
Recently, this law was brought for review in the United States District Court for the Northern District of Florida in Tallahassee, Judge Robert Hinkle, in Glen Murphy vs. Adolfo C. Dulay, MD, et al (case no. 4:13cv378-RH/CAS). Judge Hinkle analyzed Florida Statutes against the privacy protections provided under federal law, specifically, Health Insurance Portability and Accountability Act (“HIPPA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996).
Judge Hinkle attempted to reconcile the obvious violations of privacy required in Florida Statutes 766.105 and 766.106 against the very important privacy protections afforded under HIPAA.
Under HIPAA, an authorization for release of protected information is only if a “valid authorization” is given by the patient. The court found that the authorization compelled under FS 766.106, is not valid:
“The rule authorizes a disclosure in response to a court or administrative order. In the absence of an order, the rule authorizes a disclosure only on specific conditions that give the patient an opportunity to object and to obtain a judicial or administrative ruling on the objection in advance of the disclosure. The Florida statute, in contrast, takes a court or administrative tribunal out of the process altogether; a patient has no opportunity to object or obtain an advance ruling on proposed disclosures. In short, the Florida statute is an effort to dispense with—not comply with—the more restrictive federal requirements.”
An authorization must be signed by the patient or by a personal representative. Id. § 164.508(c)(1)(vi). As Defendants now acknowledge, an authorization signed by an incompetent person is not valid. An authorization signed under duress—a gun to the head, for example—is not valid. On any reasonable view, an authorization obtained by fraud or under any of the other circumstances that, under established law, invalidate a signature or consent is not valid. In short, an authorization’s inclusion of the specific elements listed in the rule is necessary, but not always sufficient, to establish validity.”
Judge HJinkle then discussed whether “an authorization mandated by state law as a condition precedent to pursuing a medical-negligence action “valid”?
The court concluded that an authorization compelled under Florida Statute is not valid. The court observed that the whole purpose of an authorization is that the patient must consent to the release of the protected medical information. Under Florida law, the authorization is compelled, much like figuratively placing a gun to the head of the patient to force the authorization.
Hopefully, Dr. Dulay’s insurance company will take an appeal of this decision to the Eleventh Circuit Court of Appeals. Judge Hinkle’s analysis of the facts and the law appear sound and the Eleventh Circuit should affirm the decision. This would remove one of the threats crafted by Florida legislators to deny Floridians their constitutional right to the court system.