On September 16, the U.S. Court of Appeals for the Eleventh Circuit heard oral argument in a challenge to a Florida law that went into effect in July 2013 and requires potential medical malpractice plaintiffs to file an authorization that would allow the defense team to conduct ex parte interviews with the plaintiff’s treating physicians, including those from two years before the alleged malpractice incident, beginning during the 90-day period before a lawsuit may be filed and lasting throughout the duration of the suit.  Late last year, U.S. District Court Judge Robert Hinkle declared the Florida statute null and void because it was preempted by the federal Health Insurance Portability and Accountability Act, known as HIPAA.  CCL’s Robert S. Peck argued the case before Judge Hinkle and reprised his argument before the Eleventh Circuit.

Representing the State of Florida, Deputy Solicitor General Diane DeWolf argued that the mandatory authorization required by state law might coerce a plaintiff into giving up privacy rights, but that the State could insist on that requirement to go to court as a condition precedent to filing a lawsuit.  She argued this type of coercion is not unlike other forms of coercion that HIPAA permits.  Eric Bartenhagen, representing the defendant doctor, agreed, claiming that a HIPAA-compliant authorization was a legitimate way for the State to enforce its interests in giving defense counsel equal access to the plaintiff’s doctor that the plaintiff’s lawyer had.

Peck countered these arguments by emphasizing that Congress had made a judgment to set national standards to protect the privacy of private health information and expressly preempted state law unless it was more stringent that federal law in its protection of privacy.  In recognizing that there were legitimate needs for that information, the Department of Health and Human Services wrote specific procedures that had to be followed in judicial proceedings, which included obtaining a court order before inquiries beyond standard discovery could take place.  The authorization procedure adopted by Florida, Peck said, impermissibly by passed the procedures required in judicial proceedings in a manner that no federal court and no state appellate court, save that of Texas, had found that a mandatory authorization was a legitimate alternative to following the specific procedures applicable to judicial proceedings.

The case was taken under advisement.