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From the staff of the Tampa Bay Times

Doctors urging Bondi to appeal medmal ruling

26

September

The Florida Medical Association is urging Attorney General Pam Bondi to appeal the ruling Wednesday by Federal Court Judge Robert Hinkle that invalidated a part of the medical malpractice reform law passed by legislators last spring.

The provision related to "ex parte" communications and would have allowed the lawyers for a doctor who is being sued by a patient to talk to other doctors for the patient without the patient's consent. Hinkle ruled that the law violated the federal health care privacy protections. 

"The FMA is disappointed in the recent ruling by Judge Hinkle regarding the ex parte provision of the 2013 Florida Legislature's medical liability reform law,'' said Alan Harmon, M.D., president of the Florida Medical Association in a statement.

"The FMA reviewed the entire law and we still feel that the Florida Legislature took great pains to ensure that this legislation was fully compliant with federal law. The FMA disagrees with this ruling and stands ready to assist with an appeal.  We are confident that this law will be upheld upon appeal."

Bondi spokeswoman Jennifer Meale said they are reviewing the case. 

From the FMA news release:

The facts:

  • Yesterday, in the case of Glen Murphy v. Adolfo C. Dulay, M.D., Federal Court Judge Robert Hinkle issued an order holding the ex parte provision of the FMA’s tort reform legislation invalid.
  • Judge Hinkle held that an authorization that a patient is required to provide under Florida Statutes s.766.1065 does not authorize a healthcare provider to disclose health information about the patient in an ex parte interview.
  • The order enjoined Dr. Dulay (and his attorneys and insurer) from asking for  or obtaining health information regarding the plaintiff in an ex parte interview based solely on the provisions of the 2013 tort reform legislation supported by the FMA.
  • The order does not impose a statewide injunction on the ex parte provision.  There are 3 other cases pending that challenge this provision on the same grounds (one was voluntarily dismissed), and they may reach a different conclusion.

Some context:

The FMA strongly disagrees with Judge Hinkle’s decision and believes that it was wrongly decided. 

The Texas Supreme Court reached a very different decision and upheld an almost identical law, finding that it was not preempted by federal HIPPA provisions.  We think the reasoning of the Texas Supreme Court will prevail on appeal.  

What’s next:

Both Dr. Dulay and the State have the right to appeal this decision. The FMA has been in touch with the AG’s office concerning this decision.  They have expressed concern, and are considering their next steps. The FMA will discuss the ruling with Dr. Dulay and offer to assist him in any way possible in pursuing an appeal of Judge Hinkle’s decision.

This ruling DOES NOT affect the expert witness provisions of the 2013 legislation.

[Last modified: Thursday, September 26, 2013 5:39pm]

    

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