On September 25, U.S. District Court judge Robert Lewis Hinkle struck down a new Florida statute that required prospective medial malpractice plaintiffs to authorize ex parte interviews with their treating physicians, beginning 90 days before any lawsuit is filed. 

The case, Murphy v. Dulay, was filed shortly after the new law went into effect July 1.  It challenged a new authorization required during the presuit phase of a medical malpractice claim that permitted defendants, their lawyers, and their insurers to conduct interviews with a patient's treating physicians going back two years before the alleged medical malpractice.  The interviews authorized by the law could be conducted outside the presence of the patient or his lawyer, thereby constituting a broad waiver of physician-patient privilege.  The lawsuit, filed by CCL with Florida lawyers Neal Roth, David Bruckner, and Dana Brooks, challenged the new statute as inconsistent with the federal Health Insurance Portability and Accountability Act (HIPAA).  HIPAA protects a patient's private health information and establishes prerequirements before doctors may be required to disclose the information, even in the course of judicial proceedings.  The Florida statute failed to comply with HIPAA's requirements, as Judge Hinkle detailed in his opinion.

CCL President Robert S. Peck argued the case before Judge Hinkle, who sits on the U.S. District Court for the Northern District of Florida, on September 18.  Opposing counsel included Dr. Dulay's lawyer and the Florida Attorney General's office.  Agreeing with CCL's briefs on behalf of plaintiff Murphy, the judge found that the statutorily mandated authorization was not voluntary and therefor could not constitute consent to disclosure and that the other HIPAA-required safeguards were not part of the Florida procedure.  He enjoined the putative defendant doctor from moving to dismiss any lawsuit filed in state court by the plaintiff on grounds that he did not comply with the Florida law's authorization of ex parte interviews.