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Federal judge throws out FMA's 'ex parte' reform from 2013 session

A federal judge on Wednesday threw out a law aimed at making it easier for doctors to defend themselves in medical malpractice claims saying in a 17-page ruling that the attempt to allow a lawyer for a doctor talk to other doctors of the patient that is suing violates the federal health care privacy law.

"The Florida statute is an attempt not to comply with the federal requirements but to circumvent them—to allow ex parte interviews without consent and without the court or administrative order (or opportunity to obtain a ruling) that federal law requires," wrote U.S. District Judge Robert Hinkle in his order, referring to the federal Health Insurance Portability Accountability Act of 1996, commonly known as HIPAA.  Download Doe Order

The law, passed by the 2013 legislature with extensive backing by the Florida Medical Association, attempted to change the way "ex parte communications" are handled in medical malpractices cases.

The lawsuit was brought by a patient who wants to sue a doctor for negligence but believed his privacy rights were violated by the new law. The lawsuit was backed by opponents of the measure, the Florida Justice Association, a trial-lawyers group.

The plaintiffs alleged the law could lead to the improper disclosure of personal health information to defense attorneys representing doctors or other health providers. Supporters of the law argued that it was only fair that the law gave defense attorneys access to information that the plaintiffs' attorneys already can review.

But Hinkle disagreed.

"It is virtually certain that if an ex parte interview occurs, private information otherwise protected from disclosure by federal law—that is, information that could be disclosed in this setting only if the authorization is valid—will be disclosed,'' he wrote.