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April 8th, 2019

Florida Bills Would Diminish Patient Privacy

Two bills moving through the Florida legislature, if enacted, will further solidify the state’s unfortunate status as a “Judicial Hellhole.” While the courts can be faulted for much of this regrettable distinction, as we chronicle in our reports, the state’s legislature can make it worse by passing Senate Bill 1700 and its companion in the House, H.B. 1253.  

These proposals are intended to support the Attorney General’s lawsuit against opioid manufacturers, distributors and pharmacies.  There will be, however, regrettable consequences for consumers.  As William Large of the Florida Justice Reform Institute testified on the proposals, if the bills are enacted, private data of individual consumers in the Prescription Drug Monitoring Database (PDMP) likely will be made public in litigation. The PDMP was established to guard against individuals going to multiple providers for the same medication, and it was never intended for use as a data repository for litigation.  Florida would become an outlier as the only state to allow this disclosure of consumer data.

While we understand the sponsors’ desire to address the opioid crisis, we have a number of concerns with the existing lawsuits that have been filed in Florida and all around the country:

  1. Prescription opioids, like all pharmaceuticals, are regulated throughout the supply chain – from FDA approval, to the process for prescribing, through distribution and ultimately sale to the consumer. But will litigation “solve” the opioid addiction crisis?  
  2. A recent investigation by the Washington Post revealed that much of the problem the nation faces is actually illegal fentanyl, and the NIH reports that nearly twice as many opioid-related deaths in Florida involve fentanyl rather than those that require prescriptions. However, the scourge of synthetic opioids is not addressed in the civil litigation.
  3. For nearly a generation, state and local governments have hired personal injury lawyers on a contingency basis to sue entire industries.  And while public officials are required to serve the interests of the public, the motivation of contingency fee lawyers is to maximize economic recoveries – and their fees. These competing priorities can lead to corruption or worse, as we’ve seen in Texas. 
  4. Health advocates will point to the 1998 national tobacco settlement as a roadmap for the states regarding opioids. But a fundamental question must be, “Where does the money go?” A recent analysis of the tobacco litigation revealed that a mere 2% of the funds Texas received in 2016 went to anti-smoking efforts. Oklahoma’s recent $270 million settlement with Purdue directs $12.5 million of that amount to local governments.  The state’s lawyers are expected to receive nearly five times the amount going to localities.  

ATRA testified before the Florida House Civil Justice Subcommittee this legislative session on why the state is cited in our Judicial Hellholes report and recommended steps for Florida to take in order to be removed from the list. We believe that enactment of S.B. 1700/H.B. 1253 is a significant step in the wrong direction. Moreover, it will diminish the privacy rights of consumers, while enriching the pockets of personal injury lawyers. 

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