On July 1, CCL participated in the filing of five constitutional challenges in state and federal court, alleging that a new Florida law, effective that day, violates the privacy rights of people considering bringing medical-malpractice claims by requiring that they execute a release, at least 90 days before they plan to file suit, permitting the defendant doctor, defendant’s lawyer, defendant’s insurer, and defendant’s expert witnesses and their lawyers, access to the plaintiff’s private health information held or known by all who treated the plaintiff during the previous two years. The mandatory release also authorizes the defendant and the defendant’s team to engage in private interviews with treating health care providers, also known as ex parte communications, without notice or an opportunity to object during the presuit period.

"The law opens the door to a fishing expedition into the past of anyone with the temerity to consider filing a medical-malpractice claim,” said CCL President Robert S. Peck, co-counsel in two of the three federal lawsuits and architect of the challenges. “The courts must intervene because privacy, once lost, can never be recovered.”

The federal cases assert that the Florida law violates federal privacy rights established in the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA preempts state law and requires health-care providers keep private health information confidential and may only release it, in the context of a lawsuit, pursuant to a court order, subpoena, or the discovery process that exists under judicial rules.  Although a plaintiff can consent to release, any consenting authorization must comply with federal rules indicating precisely who may access the information and the extent of the information authorized for release. The form required by the Florida statute does not conform to HIPAA’s requirements. In a similar challenge to a release form, the Georgia Supreme Court found the form violated HIPAA.

One federal case, Doe v. Dulay, was filed in the U.S. District Court for the Northern District of Florida. The plaintiff filed under a pseudonym to protect his privacy. He states that he fears that embarrassing information concerning his past health issues, unrelated to the medical-malpractice claims he now wants to pursue, will be revealed in violation of his federal privacy rights. Two other cases were filed in the Southern District of Florida, Lee v. Bethesda Hospital and Doe v. Palm Beach OBGYN.

The state cases, Hintz v. Salamon and Weaver v. Myers, also make the HIPAA preemption argument.  In addition, they assert that the new law violates various provisions of the Florida Constitution. As a matter of separation of powers, the Florida Constitution assigns exclusive authority to formulate rules of procedure to the state Supreme Court. That court has developed a rule governing presuit disclosures that is in conflict with the new law, rendering it an arrogation of judicial power by the state legislature. In addition the Florida Constitution guarantees a right of privacy and access to the courts, provisions violated by the new statute. Finally, the Florida Constitution bars special laws relating to rules of evidence that amount to favoritism for a particular group.  The new law violates that prohibition by creating a special evidentiary privilege for medical-malpractice defendants.

Coverage of the lawsuits’ filing is available at http://www.palmbeachpost.com/news/news/state-regional-govt-politics/west-palm-beach-woman-sues-to-stop-part-of-new-sta/nYbNf/; http://www.bloomberg.com/news/2013-07-01/florida-attorneys-challenge-medical-malpractice-law.html; http://miamiherald.typepad.com/nakedpolitics/2013/07/lawyers-file-lawsuits-challenging-change-in-medmal-law-that-takes-effect-today.html; http://miamiherald.typepad.com/nakedpolitics/2013/07/lawyers-file-lawsuits-challenging-change-in-medmal-law-that-takes-effect-today.html; and http://www.bizjournals.com/jacksonville/blog/morning-edition/2013/07/floridas-new-medical-malpractice-law.html.