In Weaver v. Myers, a case pending in the Circuit Court for Escambia County, Florida, CCL filed a motion for summary judgment asking the court to declare Florida’s new law permitting ex parte interviews of a medical malpractice plaintiff’s treating physicians unconstitutional.

The law, which went into effect in July 2013, gives prospective malpractice defendants and their litigation allies during the 90 days before any lawsuit could be filed an opportunity to interview health-care providers who have treated the plaintiff in connection with the injuries resulting from negligent medical care. The statutorily authorized interviews would take place without counsel for the patient present.

In another case brought by CCL, a federal judge in the Northern District of Florida ruled that the Florida law was preempted by the federal Health Insurance Portability and Accountability Act (HIPAA), which protects the privacy of a patient’s health information and preempts state laws that are less stringent in its protections of privacy. That case, Murphy v. Dulay, is currently on appeal in the U.S. Court of Appeals for the 11th Circuit.

In Weaver, CCL also makes the same argument that the Florida law is preempted by HIPAA, but also asserts that the law violates the Florida Constitution.  The brief argues that the procedures mandated by the statute are inconsistent with rules of discovery promulgated by the Florida Supreme Court, rendering it a violation of separation of powers. It also asserts that the Florida Constitution’s prohibition on special laws and its guarantee of access to the courts also bars the ex parte law.

CCL’s Robert S. Peck is counsel in the case, along with Levin Papantonio’s Virginia Buchanan. Argument on the motion is scheduled for February 17.