News

In Weaver v. Meyers, a Florida trial court must rule on whether a 2013 state statute that authorized presuit ex parte interviews of a putative medical-malpractice plaintiff’s treating physicians, going back as far as two years before the alleged malpractice. CCL has challenged the law as preempted by the federal Health Insurance Portability and Accountability Act (HIPAA), as well as on state constitutional grounds.  On June 12, defendants filed a proposed brief responding to CCL’s latest brief in the case, along with a motion for leave to file a sur-reply, asserting that CCL had raised new issues in its response to the defendants’ cross-motion for summary judgment and raising questions about the accuracy of CCL’s rendition of caselaw in its brief.  On June 16, CCL filed a response to the request, pointing out that no new issues had been raised and that the issue identified as new by the defendants had been part of the defendants’ own cross-motion and thus the door to the issue had been opened by the defendants.  CCL also denied any inaccuracies in its description of caselaw, indicating that claim, even if true, was not a basis on which Florida courts permitted sur-replies.  It further pointed out that Defendants’ new proposed brief failed to advise the court that a quotation from a new decision of the U.S. Supreme Court was in a section of the opinion joined only by three justices, and thus had no precedential value.  The CCL response concluded that it had no objection to the court’s acceptance of the proposed brief, provided that the brief was read with extreme caution.

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. 

On May 10, a Florida trial judge in Pensacola heard CCL President Robert S. Peck argue that the state statute requiring medical malpractice plaintiffs to authorize ex parte contacts with their treating physicians by their litigation opponents beginning during the period before the lawsuit is filed is preempted by federal law and violates the Florida Constitution.

Peck asserted that, as a federal district court held last September in a case he also argued, the Florida law was preempted by the privacy rules promulgated under the federal Health Insurance Portability and Accountability Act (HIPAA), which overrides state laws less protective of privacy.

He also argued that the new statute was inconsistent with procedural rules written by the Florida Supreme Court, thereby violating separation of powers, constitutes a form of economic favoritism in violation of the state constitutional ban on special legislation, and inhibited access to the courts.

The case was taken under advisement, though a ruling is expected soon in the case, Weaver v. Meyers. Meanwhile, the federal decision, Murphy v. Dulay, will be heard on appeal in the U.S. Court of Appeals for the 11th Circuit during the week of August 18.

Additional news coverage of this important decision may be found in the LA Times and Mother Jones.

Orginal post March 14, 2014:

 In a landmark decision briefed and argued by CCL attorneys, Estate of McCall v. United States, the Florida Supreme Court, 5-2, struck down a non-economic damage cap that applied to wrongful death claims based on medical malpractice as a violation of the state constitution’s equal protection guarantee.  Writing for the majority, Justice R. Fred Lewis accused the Legislature of falsifying a medical malpractice crisis in an attempt to justify a measure that had “the effect of saving a modest amount for many by imposing devastating costs on a few,” and generating an increase in net income of more than 4300 percent for insurance companies that did not translate into premium savings for doctors. The Court concluded that no medical malpractice crisis existed in 2003, when the legislation was enacted, and, even if one did, no crisis exists today.

CCL’s Robert S. Peck and Valerie Nannery represented the Estate of Michelle McCall, a twenty-year-old woman who died after giving birth to a baby boy in 2006,  with Peck arguing the case before the Florida Supreme Court. McCall’s death was the result of a failure to begin a blood transfusion to replace blood lost before the late arrival of an OB-GYN after family practice physicians had induced labor.  As the trial court put it, McCall “bled to death in the presence of all medical staff who were attending her.” The case, tried before a judge by Florida lawyers Henry Courtney, Sarah Courtney-Baigorri, and Stephen Poche, resulted in a verdict of nearly $3 million, which included $2 million in noneconomic damages.  Of the noneconomic damages, $500,000 was designated as compensation for the newborn’s losses of parental companionship, instruction, and guidance and for his mental pain and suffering. An additional $750,000 each was designated as compensation for each of Michelle’s parents for their pain and suffering. However, under the challenged statute, the noneconomic damages were cut in half to $1 million because the statute set a cumulative limit on non-economic damages of $1 million against all practitioners. Agreeing with CCL’s argument, the Florida Supreme Court held that aggregate caps or limitations on noneconomic damages violate the equal protection guarantees under the Florida Constitution when applied without regard to the number of claimants entitled to recovery.

 In striking the cap, the Court not only regarded the alleged malpractice crisis as pretextual but went further and found that the “available evidence fails to establish a rational relationship between a cap on noneconomic damages and alleviation of the purported crisis.” The Court then endorsed a 1988 observation of the Texas Supreme Court that “[i]n the context of persons catastrophically injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease.” 

Coverage of the decision may be found in the Miami Herald and Tampa Bay Times

CCL President Robert S. Peck spoke to researchers at the RAND Institute for Civil Justice March 19 in Santa Monica, California, about the constitutionality of damage cap statutes and why they should almost never pass constitutional muster. He began his talk by describing the decision by the Florida Supreme Court last week that struck that state's cap on wrongful death damages in medical malpractice cases.  Peck had served as counsel in the case, Estate of McCall v. United States, and had argued it before the Florida Supreme Court. The Court held that the cap, which imposed both a per claim limit and an overall incident limit, violated due process because claimants' damages were reduced arbitrarily on the basis of the number of claimants injured.

Peck also discussed other constitutional bases for challenging damage caps, including the right to trial by jury, open court provisions, and separation of powers, using other CCL cases, such as Watts v. Lester E. Watts Med. Ctrs. (Mo. 2012) and Lebron v. Gottlieb Mem. Hosp. (Ill. 2010), as exemplars of the other approaches.

 In a landmark decision briefed and argued by CCL attorneys, Estate of McCall v. United States, the Florida Supreme Court, 5-2, struck down a non-economic damage cap that applied to wrongful death claims based on medical malpractice as a violation of the state constitution’s equal protection guarantee.  Writing for the majority, Justice R. Fred Lewis accused the Legislature of falsifying a medical malpractice crisis in an attempt to justify a measure that had “the effect of saving a modest amount for many by imposing devastating costs on a few,” and generating an increase in net income of more than 4300 percent for insurance companies that did not translate into premium savings for doctors. The Court concluded that no medical malpractice crisis existed in 2003, when the legislation was enacted, and, even if one did, no crisis exists today.

CCL’s Robert S. Peck and Valerie Nannery represented the Estate of Michelle McCall, a twenty-year-old woman who died after giving birth to a baby boy in 2006,  with Peck arguing the case before the Florida Supreme Court. McCall’s death was the result of a failure to begin a blood transfusion to replace blood lost before the late arrival of an OB-GYN after family practice physicians had induced labor.  As the trial court put it, McCall “bled to death in the presence of all medical staff who were attending her.” The case, tried before a judge by Florida lawyers Henry Courtney, Sarah Courtney-Baigorri, and Stephen Poche, resulted in a verdict of nearly $3 million, which included $2 million in noneconomic damages.  Of the noneconomic damages, $500,000 was designated as compensation for the newborn’s losses of parental companionship, instruction, and guidance and for his mental pain and suffering. An additional $750,000 each was designated as compensation for each of Michelle’s parents for their pain and suffering. However, under the challenged statute, the noneconomic damages were cut in half to $1 million because the statute set a cumulative limit on non-economic damages of $1 million against all practitioners. Agreeing with CCL’s argument, the Florida Supreme Court held that aggregate caps or limitations on noneconomic damages violate the equal protection guarantees under the Florida Constitution when applied without regard to the number of claimants entitled to recovery.

 In striking the cap, the Court not only regarded the alleged malpractice crisis as pretextual but went further and found that the “available evidence fails to establish a rational relationship between a cap on noneconomic damages and alleviation of the purported crisis.” The Court then endorsed a 1988 observation of the Texas Supreme Court that “[i]n the context of persons catastrophically injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease.” 

Coverage of the decision may be found in the Miami Herald and Tampa Bay Times

CCL’s Robert S. Peck argued that the Indiana Tort Claims Act violates the state constitution’s equal privileges and open courts provisions, as it has been applied to claimant Jordyn Polet who was injured when the stage collapsed during the Indiana State Fair in 2011.  Jordyn had attended the state fair with her mother, older sister, and a family friend, having situated themselves in a standing-room only area by the stage for a performance of the country music duo, Sugarland. Just before the concert started, a sudden windstorm toppled the overhead rigging and lighting system, killing seven people, including the Polet family’s friend, and severely injuring Jordyn’s mother and sister. Jordyn escaped with relatively minor injuries to her ankle, but was diagnosed with post-traumatic stress disorder, for which she still receives treatment, as a result of what she witnessed.  

Under the tort claims act, Indiana has limited its liability to $700,000 per claimant and an overall limitation of $5 million per incident.  Indiana attempted to settle all claims by splitting the overall limit of $5 million, offering $300,000 in each of the death cases and offering 65 percent of all medical and hospital bills up to that time for the remaining 56 claimants. Jordyn was offered less than $2,000 in settlement and refused the offer as inadequate.  She was the only claimant to refuse a settlement.  Subsequently, the Indiana legislature appropriated an additional $6 million to be distributed to all who had accepted settlements to cover the rest of the hospital and medical expenses originally claimed.  In this case, the State argued its liability ended when it distributed the full $5 million originally authorized under the tort claims act.

Before a Marion County Superior Court judge on a motion for partial summary judgment to strike the State’s claim of complete immunity, Peck argued that the tort claims act had waived government immunity and provided Jordyn with a accrued and valid cause of action that could not be eviscerated by an offer of settlement that she did not accept.  Moreover, Peck said, the overall cap on government liability violated the equal-privileges provision because it treated Jordyn differently than others who have tort claims against the State by reducing her damages only because she was injured at the same time as many others.  He further stated that acceptance of the State’s argument that it could implement the overall cap in any rational way would permit it to devise a first come, first serve approach that would leave out many claimants, not just Jordyn.  He argued that the state could not provide some tort claimants with full economic and noneconomic damages and then offer others injured with many others a percentage of a small subset of their actual damages.

The case is under advisement.  It was also recently the subject of a telecast on NBC’s Dateline.

Representing the American Association for Justice (AAJ), CCL’s Kathryn S. Minton filed an amicus curiae brief in the Pennsylvania Supreme Court, urging the Court to find the liability cap under the Political Subdivision Tort Claims Act unconstitutional.

In this case, Zauflik v. Pennsbury School District, seventeen-year-old Ashley Zauflik was run over by a school bus, owned and operated by Pennsbury School District, while standing outside her high school. Zauflik suffered pelvic and leg crush injuries that required an above-the-knee amputation of her left leg. After the school district admitted negligence, a Bucks County jury entered a verdict awarding $14 million in compensatory damages to Zauflik, which the court reduced to $500,000 under the cap, but urged that “a reevaluation of the constitutionality of the statutory cap on damages on equal protection grounds is necessary.” After the decision was affirmed by a divided Commonwealth Court, the state supreme court agreed to determine whether the cap violates provisions of the Pennsylvania Constitution.

AAJ’s amicus brief provides the Court a national and historical perspective on governmental immunity doctrine and defines its limited status under the Tort Claims Act damage cap as an ordinary law enacted by statute because the Court previously abrogated sovereign immunity as an antiquated common-law doctrine. Expressing concern that the cap contravenes Pennsylvania’s equal protection, open courts, jury trial, and anti-cap guarantees, the brief urges that the “Court should recognize that the statute has no extra-constitutional status and must conform to constitutional requirements[,]” and that, because it does not, Zauflik is entitled to full recovery of her jury verdict. 

Responding to appeals filed by the State of Florida and the defendant in Murphy v. Dulay, CCL’s Robert S. Peck filed a brief on behalf of the appellee Murphy, arguing that Florida’s 2013 law that required medical-malpractice plaintiffs to authorize pre-suit ex parte interviews with their treating physicians is preempted by the federal Health Insurance Portability and Accountability Act (HIPAA). CCL had won a ruling from the U.S. District Court for the Northern District of Florida, holding the Florida requirement preempted. Both Florida and Dulay argue in their appeal that the state has required plaintiffs to sign an authorization for ex parte contacts as a condition precedent to filing a lawsuit and rely on a Texas Supreme Court ruling to assert that such an authorization is voluntary and meets all of HIPAA’s requirements.  CCL’s new brief argues that HIPAA sets forth the requirements for a waiver of privacy rights concerning health information.  Its regulations specify the steps that must be taken in litigation and require a court order that includes notice and an opportunity to object before information may be sought from a patient’s treating physicians. The Florida statute attempts to bypass those steps by coercing waiver of the rights in a manner that directly conflicts with HIPAA’s requirements and cannot constitute a voluntary waiver of the rights.

CCL also filed an opposition this week to an amicus brief filed on behalf of the Texas, Florida and American medical associations because it was filed three weeks late. A timely brief on behalf of the Florida Justice Reform Institute supporting the State and defendant was filed earlier in the month. That brief argued that HIPAA does not require that a patient’s waiver of privacy rights had to be voluntary, however, the regulations emphasize the need for voluntariness and directly rebut the argument.  No oral argument has yet been scheduled in the case.

In Weaver v. Myers, a case pending in the Circuit Court for Escambia County, Florida, CCL filed a motion for summary judgment asking the court to declare Florida’s new law permitting ex parte interviews of a medical malpractice plaintiff’s treating physicians unconstitutional.

The law, which went into effect in July 2013, gives prospective malpractice defendants and their litigation allies during the 90 days before any lawsuit could be filed an opportunity to interview health-care providers who have treated the plaintiff in connection with the injuries resulting from negligent medical care. The statutorily authorized interviews would take place without counsel for the patient present.

In another case brought by CCL, a federal judge in the Northern District of Florida ruled that the Florida law was preempted by the federal Health Insurance Portability and Accountability Act (HIPAA), which protects the privacy of a patient’s health information and preempts state laws that are less stringent in its protections of privacy. That case, Murphy v. Dulay, is currently on appeal in the U.S. Court of Appeals for the 11^th Circuit.

In Weaver, CCL also makes the same argument that the Florida law is preempted by HIPAA, but also asserts that the law violates the Florida Constitution.  The brief argues that the procedures mandated by the statute are inconsistent with rules of discovery promulgated by the Florida Supreme Court, rendering it a violation of separation of powers. It also asserts that the Florida Constitution’s prohibition on special laws and its guarantee of access to the courts also bars the ex parte law.

CCL’s Robert S. Peck is counsel in the case, along with Levin Papantonio’s Virginia Buchanan. Argument on the motion is scheduled for February 17.