Judge Edward P. Nickinson, III, upheld a year-old Florida statute that gives likely medical malpractice defendants and their litigation allies the right to seek ex parte interviews with a plaintiff’s treating physicians, including those who treated the plaintiff up to two years prior to the alleged malpractice incident. Such presuit interviews are authorized by a law that went into effect July 1, 2013.  CCL had challenged the law as preempted by the federal Health Insurance Portability and Accountability Act, which explicitly preempts state laws that are less stringent in its protection of patient privacy than provided by federal regulations, and violative of several provisions in the Florida Constitution.  CCL expects to appeal the ruling.

 In his opinion, Judge Nickinson disagreed with the federal District Court for the Northern District of Florida, which found that the state law was preempted.  In Murphy v. Dulay, issued last fall, the federal judge found that the Florida legislature evaded HIPAA’s requirements applicable to judicial proceedings by requiring plaintiffs to execute a state-mandated authorization form.  That case is currently on appeal in the Eleventh Circuit, which will hold arguments in mid-September.

Judge Nickinson, relying on a Texas Supreme Court case, found the state-mandated form was a legitimate alternative to following the stricter federal regulations.  He also found that the authorization requirement was substantive, rather than procedural, so that the Legislature did not intrude on the Florida Supreme Court’s exclusive constitutional authority over rules of procedure, even though a preexisting rule of procedure promulgated by that court conflicted with the new law. The ruling also rejected arguments that the law constituted special legislation, which the Florida Constitution prohibits, as well as burdens a plaintiff’s constitutional right of access to the courts.  Instead, he held that the requirement was a legal precondition to bringing a medical malpractice action, a position that a majority of courts throughout the country have rejected.