Judge J. Scott Duncan denied a motion to dismiss the declaratory action filed by CCL and Florida lawyer Virginia Buchanan, challenging the constitutionality of a new Florida law that permits defendants, their lawyers, and their insurers to engage in ex parte interviews, presuit, with a prospective medical-malpractice plaintiff’s treating physicians. In Weaver v. Myers, the defendant doctor had asserted that the action was premature because the plaintiff had not yet started the presuit process that Florida law requires. However, the judge’s order acknowledged that there was a present, practical need for a determination of rights because the plaintiff was forced to either waive privacy rights secured under federal law and the Florida Constitution or forego vindication in court of any medical malpractice claims. As a result the court held that the complaint stated a justiciable claim.

The filed challenge asserts that the new Florida statute is preempted by the federal Health Insurance Portability and Accountability Act of 1996, familiarly known as HIPAA, as well as Florida constitutional provisions establishing separation of powers, prohibitions on special laws, a right to privacy, and a right of access to the courts. The judge did dismiss the claim based on the right to privacy. The medical malpractice alleged resulted in the death of the patient, and the case is being carried forth by his wife, as personal representative of the estate. Despite precedents that the term “natural person” in the Florida Constitution includes people who have died and is used to distinguish between humans and artificial persons, such as corporations, and despite the fact that Mrs. Weaver had her own claim for loss of consortium and her privacy rights were affected, the judge wrote that he was unable to find any precedents that permitted an estate to assert privacy rights on behalf of a decedent. He further held that the defendant-doctor was not a state actor subject to constitutional restrictions, even though the passage of a statute by the Legislature constituted the type of state action that the Florida Constitution requires.

The case will now go forward on the federal and other state constitutional claims, with briefs due later this month and an oral argument currently scheduled for mid-February.