On September 25, 2013, the Northern District Court of Florida, Tallahassee Division, ruled that Florida Statute § 766.1065 violated HIPAA by requiring a plaintiff in a medical malpractice action to deliver a presuit authorization allowing the defending parties to conduct ex parte interviews of plaintiff's other healthcare providers. Finding that HIPAA does not "otherwise permit or require disclosures in an ex parte interview of the kind at issue," and that the plaintiff's "authorization" under applicable Florida law was invalid under federal rules, the court enjoined the defendants from interviewing plaintiff's other healthcare providers ex parte (1) absent voluntary consent of the plaintiff or (2) in accordance with the provisions of HIPAA.

As background, claimants pursuing medical negligence suits in Florida must meet specific presuit requirements pursuant to Fla. Stat. § 766.106. These presuit requirements are intended to put the defendant on notice of the individual's intent to sue and thus must be completed before the claimant files his or her complaint for medical negligence. Among other things, the Florida statute requires the claimant to provide to the prospective defendant a list of all known healthcare providers during the two-year period prior to the alleged act of negligence that treated or evaluated the claimant, along with copies of all medical records.

Section 766.1065, which became effective July 1, 2013, also requires the plaintiff to submit a signed authorization allowing the defendant, the defendant's attorney, insurer and/or adjuster, to interview the plaintiff's other healthcare providers ex parte. The authorization permits disclosure of protected health information that is potentially relevant to the claim of personal injury or wrongful death and must be in the form specified pursuant to the statute. Please note that the authorization does not give the defendant permission to inquire about all matters of the plaintiff's health, only those relevant to the plaintiff's cause of action.

The court based its ruling on two key premises: (1) HIPAA expressly preempts any conflicting state law, except those state laws that are more stringent than HIPAA (i.e., a state law that would prohibit a disclosure otherwise permitted under the federal rules); and (2) while HIPAA addresses disclosures made in connection with judicial or administrative proceedings, it does not supersede the need for a valid authorization provision. Specifically, under HIPAA, valid authorizations must meet specific content requirements. While the court acknowledged that the authorization mandated under the Florida statute met the specified content requirements, the authorization nonetheless failed to show the individual's consent. Instead, the authorization evidenced only the individual's mandated compliance with state law.

The court concluded that the defendants were not permitted to conduct interviews or other communications with plaintiff's other healthcare providers and enjoined the defendants from doing so. This decision, however, is unlikely to be the last word, as the defendants likely will appeal the ruling, and the ultimate resolution of this case remains unclear. Other courts have reached the opposite conclusion on a similar question of law as demonstrated in In re Collins, M.D., 286 S.W.3d 911 (Tex. 2009). These rulings do show the tension regarding HIPAA preemption.