Eleventh Circuit Preemption Redux

You know how we feel about preemption.

And we know how you feel about preemption.

Murphy's Law(suit) makes clear that HIPAA and medical negligence claims are in the same boat as airlines and hidden ticket prices. I think.
At a minimum, absent clear intent in the HIPAA regulations to prohibit conditioning the filing of a medical negligence action on executing a valid authorization, we must observe the strong presumption against preemption in areas traditionally regulated by the states. See Medtronic, Inc., 518 U.S. at 485, 116 S. Ct. at 2250. Unless we don't want to.
For the foregoing reasons, we vacate the district court’s declaratory judgment order in favor of plaintiff Murphy, as well as the district court’s injunction against the enforcement of Fla. Stat. § 766.1065. We remand for the district court to enter final judgment in favor of the defendants on Murphy’s federal preemption claim.
HIPAA...bottom line is, just sign the forms or you're up the creek without a paddle.
Accepting arguendo that one of HIPAA’s goals is to ensure that waivers of privacy protections are made knowingly and voluntarily, the Florida statute does not interfere with that goal. The HIPAA regulations allow authorizations to be based on conditions—such as employment, Medicaid benefits, and other incentives—and prohibit only one type of condition. Even that condition is not absolute but has exceptions. Further, an individual’s decision to sign an authorization prior to bringing a medical negligence claim in state court is not an involuntary one. If an individual does not wish to execute such an authorization, he does not have to. He is, however, precluded from using the Florida courts to obtain relief through a medical negligence lawsuit against a health care provider.
Oh hail, its almost 11 a.m. I'm going to finish off that second bottle of wine. Its too early for a martini.


  1. Ha! Don't worry GB, your medical data is just as safe as your credit card data. Wait, what?


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