A Significant Blow to Med-Mal Reform

Medical malpractice reform has been on virtually ever state’s legislative agenda for the past several years as a result of a concerted effort by the defense bar and public interest groups to insulate physicians from frivolous suits.  In an effort to curb rising healthcare costs, a variety of legislation imposing prerequisites on medical malpractice suits has been passed by a number of states. Rather than simply imposing damages “caps,” some states are getting creative with their reform legislation. However, a recent decision by a Florida federal judge dealt a major blow to those efforts.

According to a recent study, physicians spend considerable time in court rather than caring for patients. As a result, healthcare professionals practice “defensive medicine” where tests and procedures are ordered not to help the physician diagnose or treat a patient but rather to protect themselves from frivolous lawsuits. Four months ago, Florida’s governor signed comprehensive legislation aimed at addressing the problem. But, last week, the USDC for the Northern District of Florida struck it down.

The legislation under fire permitted communications between the defense and the plaintiff’s other medical providers as a condition precedent to bringing a medical malpractice lawsuit.  The new law (Florida Statute §766-105) required would-be plaintiffs to file a pre-suit notice including a HIPAA authorization permitting pre-suit communication. The issue in Murphy v. Dulay, No. 4:13cv378-RH/CAS was the interplay of this legislation and HIPAA.  According to the court, the benefits to the legislation include opening the communication toward an early resolution, but the court ultimately concluded that HIPAA expressly preempted the state legislation.

Describing the issue as “whether a state, by statute, may require a patient, as a condition precedent to pursuing a medical-negligence claim, to sign an authorization allowing the potential defendant and the potential defendant’s attorneys, insurers, and adjusters to conduct ex parte interviews with the patient’s other healthcare providers” the court found that “[b]ecause federal law prohibits ex parte interviews of this kind . . . the statute [was] invalid.”

This case demonstrates the continued difficulties that medical providers face in trying to pass legislation to curb frivolous suits.  While healthcare professionals have gained ground in enacting favorable legislation, this case exemplifies the roadblocks facing the med-mal defense community. Any legislation must pass approval at the legislative and judicial level before it is considered safe.

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