Hearing the first challenge to a new Florida law that raises serious privacy concerns, U.S. District Court Judge Robert Lewis Hinkle wondered aloud why any judge would not see the new law as a violation of federal privacy rights.  The Florida law, passed earlier this year and which went into effect July 1, requires a prospective medical-malpractice plaintiff to authorize doctors, their lawyers and their insurers to interview a medical-malpractice plaintiff’s treating physicians without the plaintiff’s lawyer present, beginning 90 days before any lawsuit is brought.  Known in the law as an “ex parte” interview, because only one side of the dispute is present, the law dissolves the doctor-patient privilege, as well as rights guaranteed by the federal Health Insurance Portability Accountability Act (HIPAA).  HIPAA requires that private health information remain private except in certain specific circumstances, such as a result of a court order that follows an opportunity for the patient to object to the disclosure of information unnecessary for the defendant to prepare his defense or where a plaintiff signs a valid authorization.  

Previously, Florida law did not permit ex parte interviews because, as the Florida Supreme Court stated, “were unsupervised ex parte interviews allowed, plaintiffs ‘could not object and act to protect against inadvertent disclosure of privileged information nor could they effectively prove that improper disclosure actually took place.”  Other state courts have pointed out that an ex parte interview carries the danger that ““the physician witness might feel compelled to participate in the ex parte interview because the insurer defending the medical malpractice defendant may also insure the physician witness.”

In Doe v. Dulay, the case before Judge Hinkle, who sits on the federal district court for the Northern District of Florida, CCL President Robert S. Peck argued on September 18 that the Florida law could not be reconciled with the privacy guarantees of HIPAA. 

 “While HIPAA permits a State to enhance privacy rights,” Peck told the judge, “the Florida statute plainly detracts.”  Peck argued that the authorization required by the Florida law to begin the presuit process in that state was not voluntary, lacked necessary specificity, requires revelation of private health information not relevant to the dispute, contained no meaningful right to revoke or to object, and constituted an impermissible compound authorization.  Even the provision that allows a patient to list doctors and dates of treatment that are not subject to ex parte interviews forces the revelation of private information protected by HIPAA.

The defendant doctor’s attorney and the Florida Attorney General’s office both argued that the mandatory authorization form required for commencing the presuit process was voluntary because bringing a lawsuit is a voluntary act.  In addition, even though the authorization form must be signed under state law 90 days before bringing any lawsuit, both opponents asserted that the declaratory judgment sought by the plaintiff in this case was premature.

 Judge Hinkle did wonder why federal injunctive relief was needed at this time, when he believed any judge would find the Florida law invalid.  Peck answered that no prudent lawyer would take a chance that the underlying medical malpractice claim would be dismissed for failure to follow Florida procedure when a valid federal lawsuit could settle the issue in advance.   The judge indicated that he would try to come to a quick decision in the case.