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Federal Judge Says Florida Medical Malpractice Consent Rule Preempted By Federal Law – Now Headed to Federal Appeals Court starstarstarstarstar

Recently, a federal judge struck down a key Florida medical malpractice law that required a patient to allow a defending physician`s attorney to informally discuss the case with the patient`s other health care providers. The law would have allowed those discussions to take place without the patient or their representative being present. Just this week, the defendant in the case gave notice that he will challenge the ruling in the 11th U.S. Circuit Court of Appeals in Atlanta.

U.S. District Judge Robert Hinkle ruled that this law in fact violates provisions in the federal Health Insurance Portability and Accountability Act (HIPAA). Earlier this year, lawmakers in Florida added a requirement that pre-suit notification must include the patient`s authorization allowing a defending physician, the physician`s attorney, insurer and adjuster to hold ex parte discussions with the patient`s previous and subsequent health care providers without the patient and/or their attorney being present.

While the law states those discussions are supposed to be limited to general questions about legal procedures, the potential legal exposure faced by the subsequent treating health care providers, and how any testimony could affect their board certifications, those limitations are so broad there is no way to guarantee that they would not cross the boundary into the patient`s medical condition. Judge Hinkle pointed out that just because Florida lawmakers mandate that patients sign the consent form, it does not supersede two of the provisions of HIPAA.

Personal injury attorney John E. Leighton has a passion for representing individuals who have been seriously injured due to the negligence of others, and has been deeply involved in many medical malpractice cases. Mr. Leighton has won a number of cases in this area, including a record $24.1 million settlement for a birth trauma case resulting in cerebral palsy. Other significant verdicts and settlements include $11.2+ million for a case in which birth trauma caused brain damage, a $9 million settlement for brain damage resulting from surgery and $4.3 million for death resulting from delayed medical attention.

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