Recent Changes to Florida’s Medical Malpractice Pre-Suit Requirements

The law in Florida requires someone who has a medical negligence, or medical malpractice claim, to conform to very strict rules before filing a lawsuit. These rules to be followed before a lawsuit may be properly filed are commonly referred to as MedMal Pre-Suit. In a nutshell, before a person (or “claimant”, or “plaintiff”) who has been harmed by the negligence of a doctor or dentist a file a lawsuit, notice needs to be given to the doctor and the treating facility of the claimant’s intent to file suit. The receipt of that notice triggers a 90-day clock. During this time, no lawsuit can be filed by the claimant against the doctor, who is allowed an opportunity to assess the liability and either accept the claim, deny it, or request arbitration. In reality, it is just another hoop created by lobbyists to limit litigation against doctors.

Recently, a new law was put into effect. This law makes it even more difficult to file a claim against a doctor in Florida, and aims to give doctors, among other things, authority to conduct ex parte interviews of the plaintiff’s other health care providers (ex parte is a fancy latin term that basically means only one side gets to be there). The ex parte interviews must be limited to matters pertinent to the potential medical-negligence claim. Fla. Stat. § 766.1065(3)(E).

Fortunately, Judge Hinkle, a Federal Judge of the U.S. District Court for the Northern District of Florida, recently held that one of Florida’s pre-suit requirements for pursuing a medical negligence claim under Florida law is contrary to federal law and expressly preempted by the Health Insurance Portability and Accountability Act (“HIPAA”).

This decision came in the case of Murphy v. Dulay. The plaintiff sued to stop the defendant-doctor from conducting this ex parte interview with the plaintiff’s other medical providers. The plaintiff’s argument was that this new law violated Federal law, which supersedes State law. The State of Florida intervened as a defendant to defend the constitutionality of the new law. The issue to be decided by the Court was whether a state, by statute, could require a patient, as a condition precedent to pursuing a medical negligence claim, to sign an authorization allowing the potential defendant to conduct ex parte interviews with the patient’s other health care providers.

Judge Hinkle ruled that HIPPA preempts state law, and that the new Florida law, § 766.1065, as a result, was expressly preempted.

You can find the full text of the order here: https://www.floridajusticeassociation.org/temp/ts_5A044190-BDB9-50CE-FAD75566C8F087015A04419F-BDB9-50CE-F77C749E1C84A9CA/Doe%20Order.pdf. My thanks to the Florida Justice Association for hosting the Order on its website.

If you or someone you know has been injured by the negligence of a doctor or a medical provider, please contact our offices at 813.463.0123.

UPDATE: On appeal, the 11th Circuit Court of Appeals overruled Judge Hinkle’s decision, and found Florida’s required authorization form is not preempted by HIPAA.  The court vacated the injunction and declaratory judgment, and remanded the case to the district court to enter judgment for the defendant.