Responding to appeals filed by the State of Florida and the defendant in Murphy v. Dulay, CCL’s Robert S. Peck filed a brief on behalf of the appellee Murphy, arguing that Florida’s 2013 law that required medical-malpractice plaintiffs to authorize pre-suit ex parte interviews with their treating physicians is preempted by the federal Health Insurance Portability and Accountability Act (HIPAA). CCL had won a ruling from the U.S. District Court for the Northern District of Florida, holding the Florida requirement preempted. Both Florida and Dulay argue in their appeal that the state has required plaintiffs to sign an authorization for ex parte contacts as a condition precedent to filing a lawsuit and rely on a Texas Supreme Court ruling to assert that such an authorization is voluntary and meets all of HIPAA’s requirements.  CCL’s new brief argues that HIPAA sets forth the requirements for a waiver of privacy rights concerning health information.  Its regulations specify the steps that must be taken in litigation and require a court order that includes notice and an opportunity to object before information may be sought from a patient’s treating physicians. The Florida statute attempts to bypass those steps by coercing waiver of the rights in a manner that directly conflicts with HIPAA’s requirements and cannot constitute a voluntary waiver of the rights.

CCL also filed an opposition this week to an amicus brief filed on behalf of the Texas, Florida and American medical associations because it was filed three weeks late. A timely brief on behalf of the Florida Justice Reform Institute supporting the State and defendant was filed earlier in the month. That brief argued that HIPAA does not require that a patient’s waiver of privacy rights had to be voluntary, however, the regulations emphasize the need for voluntariness and directly rebut the argument.  No oral argument has yet been scheduled in the case.