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Pre-Suit Requirement Law in Medical Malpractice Cases Thrown Out

Tort “reform” efforts take many shapes. Imposing arbitrary damage caps on medical malpractice recovery is the most well-known component of these efforts, but it is far from the only one. Sometimes the alternative “reform” proposals brought by big insurance and business interests are even more harmful because they seek to limit community members access to the court system altogether.

Take, for example, a new law that passed out of a statehouse in Florida and went into effect on July 1st of this year. The law imposed new mandatory “pre-suit’ requirements on medical malpractice cases in the state. In other words, it added even more barriers for patients seeking to hold their medical teams accountable for sometimes deadly errors.

Specifically, the law required that plaintiffs in these cases–the patient and/or their family–affirmatively “authorize” the defendants in the case (including their insurance company and lawyers) to conduct “ex parte” interviews with other of the patient’s caregivers. Ex parte is a Latin term meaning “on one side only.” In the legal sense it refers to conduct done only by one side in a case–the defendants. Put another way, the law required plaintiffs to give up privacy rights related to their healthcare records and allow defendants in their case to interview their other doctors alone without oversight from the court or the patient themselves.

Rules of procedure are critically important in all civil cases, including medical malpractice. One of the hallmarks of our justice system is the care the we place on ensuring complete fairness throughout the process, protecting the rights of all those in the court. That is why these laws which seek to tilt the balance and edit procedure to the benefit of only one party are completely inappropriate.

Fighting Back
Fortunately, advocates for fairness in the civil justice system in the state did not take the news law laying down. Instead, they challenged the implementation of the matter in the courts. As discussed in a recent post, they won an important victory and had the ex parte law ruled invalid.

A group called the Center for Constitutional Litigation brought the case, Murphy v. Dulay, in the U.S. DIstrict Court for the Northern District of Florida. They sought to prevent the law from being enforced. The main legal argument was that the state rule was “preempted” by the federal law known as the Health Insurance Portability and Accountability Act (HIPPA). HIPPA is a well-known, critical federal law that protect the privacy rights of medical patients. Individual states are not able to pass their own laws which contradict the requirements of HIPPA.

Explaining the HIPPA requirements advocates noted that: “HIPAA mandates that there be an opportunity to object to specific information being sought for use in court, and any information ordered disclosed by a court should be no more than the minimum necessary for the legal proceeding. In other words, if the medical records are sufficient, there is no need for ex parte interviews with health care providers.”

Fortunately, the district court agreed. Last month they denied the state’s motion to dismiss the suit and granted the plaintiff’s

See Other Blog Posts:

Medical Costs: Malpractice v. Fraud

Hospital Readmission Rates: Canary in the Coal Mine?

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