A recent case from the U.S. Court of Appeals for the Eleventh Circuit has decided that a Florida law allowing prospective defendants in medical malpractice cases to obtain records directly from other health care providers and to interview them about patient care and treatment is fully compliant with the Health Insurance Portability and Accountability Act (HIPAA), under certain conditions.
On October 10, 2014, the court in Murphy v. Dulay, Case No. 2013-14637, issued an opinion holding that a prior ruling from the U.S. District Court for the Northern District of Florida was incorrect. Specifically, the appellate court found that Florida Statute Section 766.1065 is fully compliant with the HIPAA statute and its regulations, and accordingly, reversed the prior order of injunction against enforcement of the statute.
The statute in question took effect on July 1, 2013, however it was immediately challenged in federal court. The statute required that prospective plaintiffs who intend to file a malpractice claim must provide an “Authorization for Release of Protected Health Information” to any health care provider they intended to sue, in addition to other statutory requirements. The Authorization is to provide access to medical records and to allow interviews of those health care providers who have knowledge relevant to the alleged injuries in the potential malpractice case. Previously, prospective defendants in malpractice cases could only obtain records through the prospective plaintiff’s attorney and could only interview other health care providers in the presence of that attorney during the presuit investigation. Once a claim became a lawsuit, defendants and their attorneys could only obtain the patient’s records by subpoena and were expressly prohibited from communicating with health care providers directly and could only do so by taking depositions of them. With the court finding the new law is valid, malpractice defendants and their attorneys can now have direct contact with certain health care providers during both the presuit investigation and during litigation.
The Eleventh Circuit reasoned that the Florida statute does not conflict with HIPAA in regard to preserving Protected Health Information, for several reasons, including that the authorization was voluntary, that it was only valid through the course of litigation, that it could be revoked at any time by the patient, and that it only authorizes access to records and health care providers who have information relevant to the claim.
By upholding Section 766.1065, the court has validated the legal right of health care providers, their insurance providers and attorneys, to access protected health information in a more expeditious and efficient manner and to give additional methods to obtain and analyze relevant information in medical malpractice claims. Health care providers and their legal counsel should develop a strategy on how to utilize these additional discovery methods with an eye toward remaining in compliance with this new law. Careful consideration must be given towards objections plaintiff’s counsel may raise to limit or prevent the greater latitude malpractice defendants have been given by this statute, especially as it is anticipated there will be additional legal challenges to its validity and scope.
By Ben Newman, J.D.
Ben Newman is a shareholder in GrayRobinson’s Orlando office in the Litigation Practice Group. He concentrates his practice in insurance defense, medical malpractice defense and mediation/arbitration services. Ben represents medical and podiatric physicians, hospitals, home health nursing agencies, chiropractors and emergency medical services. Ben can be reached at 407-843-8880 or email@example.com.