Yes, a judge ruled ex parte med-mal provision invalid, but case is far from closed

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Prior to July 2013, defendants in medical malpractice cases were barred from interviewing the plaintiff’s other physicians without the plaintiff’s consent — information that was easily available to plaintiffs and their lawyers and is often relevant to charges.

To the Florida Medical Association and the physicians they represent, this created an unfair playing field that placed defendants at a strong disadvantage, and prevented defense attorneys from deciding more quickly whether to proceed with or settle a case.

In 2013, Sen. Tom Lee and Rep. Matt Gaetz sought to provide equal access to medical fact witnesses in such cases. SB 1792 was passed by both chambers and signed into law by Gov. Rick Scott.

But immediately after these new medical malpractice laws took effect on July 1st, lawsuits were filed across the state attacking “ex parte interviews” as violating patient privacy. 

A ruling in one of these suits, Glen Murphy v. Adolfo C. Dulay, M.D., came on Wednesday. Federal Court Judge Robert Hinkle issued an order holding the ex parte provision of the 2013 tort legislation invalid, writing that it was preempted by federal HIPPA laws.

But this ruling is certainly not case closed.

While Hinkle’s ruling enjoins Dr. Dulay from asking for or obtaining health information regarding the plaintiff in an ex parte interview, the order does not impose a statewide injunction on the ex parte law. 

Three other cases are pending that challenge this provision on the same grounds, and in these cases, courts may reach a different conclusion. 

Further, in a challenge of a nearly identical Texas law, the Texas Supreme Court reached a very different decision, ruling that state law was not preempted by federal privacy provisions.

Both Dr. Dulay and the State have the right to appeal this decision. The FMA has offered to assist Dr. Dulay in doing so, but as a non-party to the case its role is limited. The FMA has also been in touch with the Attorney General’s office.

“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 FMA President Alan Harmon, M.D. “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.”

Hinkle’s ruling does not impact other provisions of the 2013 tort reform package, including expert witness reforms.

Florida’s medical malpractice climate is among the most onerous in the nation, hindering access to health care by and driving up costs.  Liability concerns are the number one reason given by Florida physicians for leaving high risk specialties or retiring prematurely.