11th Circuit Rules Ex Parte Communications Don’t Violate HIPAA Privacy Rule

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A federal appeals court (11th Cir.) upheld part of a controversial Florida medical malpractice law, saying it does not violate requirements aimed at protecting patient privacy. Tennessee has enacted a similar provision. T.C.A. ยง 29-26-121(f). This law allows a defendant to petition the court upon the filing of a healthcare liability action for a qualified protective order allowing the defendant and his attorneys to interview, outside the presence of the plaintiff or plaintiff’s counsel, the relevant patient’s healthcare providers in order to obtain protected health information. Further, any disclosure of protected health information by a healthcare provider in response to an order under the statute is deemed a permissible disclosure despite any Tennessee statute or common law.

The three-judge panel of the 11th U.S. Circuit Court of Appeals overturned a ruling last year by a Tallahassee federal judge. The decision was a win for the Republican-controlled Legislature and groups such as the Florida Medical Association, which lobbied heavily during the 2013 legislative session for changes in the medical-malpractice system.The case is here.