CCL filed a reply brief, responding to the defendants’ cross-motion for summary judgment, in a challenge to a 2013 Florida statute that authorized presuit, ex parte interviews of a medical malpractice plaintiff’s treating physicians.   Late last year, CCL won a federal district court ruling in Murphy v. Dulay, which held the same statute preempted by the federal Health Insurance Portability and Accountability Act (HIPAA). That case is currently on appeal and will be heard in the U.S. Court of Appeals for the Eleventh Circuit in August.

The present case combines allegations that the Florida statute is preempted by HIPAA, with arguments that it violates separation of powers, the ban on special privileges, and the guarantee of access to the courts under the Florida Constitution.  CCL President Robert S. Peck, counsel in both challenges, argued this case, Weaver v. Myers, in a Florida circuit court in Pensacola in May. Because Defendants filed their cross-motion for summary judgment and accompanying 75-page brief less than a week before the hearing, the court granted Peck leave to file a reply afterwards. In the reply, Peck points out that the Defendants request that the court apply a lenient preemption standard to permit the Florida law to coexist with federal law could not be observed because Congress had expressly preempted state laws that were less stringent in the protection of patient privacy than HIPAA.  He further argued that Florida, by requiring putative patient-plaintiffs to execute an authorization form, may not bypass federal requirements by labeling it a condition precedent to filing a lawsuit.  Under those circumstances, Peck said, it would be Florida law preempting federal law, rather than the other way around.  In addition, Peck countered the defendants’ state constitutional arguments by pointing out that existing Florida procedural rules were overridden by the statute, when the Constitution makes the establishment of procedural rules the exclusive province of the Florida Supreme Court.  Precedent holds that any legislation that conflicts with existing rules of civil procedure are void as a violation of separation of powers.

 Defendants also argued that the constitutional prohibition on special privileges applicable to evidentiary rules could not be violated by a statute that gives access to oral interviews of treating physicians when those interviews are not admissible in court, but Peck pointed out that a prohibition on the introduction of evidence is a rule of evidence. Finally, Defendants contended that the constitutional right of access to courts is only violated when a cause of action is completely abolished. Peck demonstrated in his brief that Florida long ago abandoned the lower court precedents that so held and have reiterated that access is denied whenever an unreasonable burden on the right is legislated.

The case now is considered under submission, and a decision is expected soon.