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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.

On September 25, U.S. District Court judge Robert Lewis Hinkle struck down a new Florida statute that required prospective medial malpractice plaintiffs to authorize ex parte interviews with their treating physicians, beginning 90 days before any lawsuit is filed. 

The case, Murphy v. Dulay, was filed shortly after the new law went into effect July 1.  It challenged a new authorization required during the presuit phase of a medical malpractice claim that permitted defendants, their lawyers, and their insurers to conduct interviews with a patient's treating physicians going back two years before the alleged medical malpractice.  The interviews authorized by the law could be conducted outside the presence of the patient or his lawyer, thereby constituting a broad waiver of physician-patient privilege.  The lawsuit, filed by CCL with Florida lawyers Neal Roth, David Bruckner, and Dana Brooks, challenged the new statute as inconsistent with the federal Health Insurance Portability and Accountability Act (HIPAA).  HIPAA protects a patient's private health information and establishes prerequirements before doctors may be required to disclose the information, even in the course of judicial proceedings.  The Florida statute failed to comply with HIPAA's requirements, as Judge Hinkle detailed in his opinion.

CCL President Robert S. Peck argued the case before Judge Hinkle, who sits on the U.S. District Court for the Northern District of Florida, on September 18.  Opposing counsel included Dr. Dulay's lawyer and the Florida Attorney General's office.  Agreeing with CCL's briefs on behalf of plaintiff Murphy, the judge found that the statutorily mandated authorization was not voluntary and therefor could not constitute consent to disclosure and that the other HIPAA-required safeguards were not part of the Florida procedure.  He enjoined the putative defendant doctor from moving to dismiss any lawsuit filed in state court by the plaintiff on grounds that he did not comply with the Florida law's authorization of ex parte interviews.

After the Florida Legislature enacted a new law authorizing prospective medical malpractice defendants, their counsel, their insurers, and their witnesses to engage in ex parte interviews with the injured person's treating physicians, CCL, working with Florida lawyers, filed multiple federal and state court challenges to the law as inconsistent with federal privacy rights and violative of Florida constitutional protections. As most people know, health care practitioners provide new patients with a statement of federal privacy rights under a law popularly known by its acronym, HIPAA. These rights provide significant protections of personal health information to prevent disclosure when used for purposes other than to treat the patient's health. In judicial proceedings, federal regulations limit disclosure to what is necessary to assure fair proceedings. The ex parte authorization exceeds that narrow exception.

While CCL's legal challenges proceed, the Florida Medical Association has likened the dispute to a boxing match between doctors and trial lawyers, when in reality the dispute pits patients against the medical establishment, which seeks to discourage redress for injuries by exposing non-relevant private information. The FMA characterization of the dispute is available on their website

At the Joint Annual Meeting of the Conference of Chief Justices and the Conference of State Court Administrators, CCL President Robert S. Peck spoke and moderated a panel discussion about the use of state constitutions to review the validity of state laws July 30.  Joining him on the panel were Justice Christine Durham of the Utah Supreme Court and Paul Bender, dean emeritus of the law school at Arizona State University. The panelists discussed state constitutions as having an independent protective force for constitutional rights, requiring a full-blown analysis irrespective of any rulings made by the U.S. Supreme Court on similar issues under the U.S. Constitution.  The session was one of the top-rated presentations during the meeting, which took place in Burlington, Vermont. Chief justices from more than 40 states attended.

In two cases, argued by CCL’s John Vail, Maryland’s highest court, the Court of Appeals, refused to exercise its authority over the common law to adopt antiquated doctrines to modern times.  In Coleman v. Soccer Association of Columbia, the court retained contributory negligence as a complete bar to a plaintiff’s recovery, even if the injured person was only the smallest bit at fault and the defendant was the principal cause of the injury.  Only five jurisdictions retain the rule.  Instead, the court said that the legislature would need to make the change.

Justice Glenn T. Harrell, Jr., in dissent, poignantly chided the majority:

"Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence."

In the second case, Warr v. JMGM Group, the court declined to hold liable a bar, which had served 17 bottles of beer, 3 drinks of hard liquor and at least one other drink to a person who then refused a cab and instead hopped into his car and soon collided with a passenger vehicle, resulting in the death of a ten-year-old girl. The driver was subsequently convicted of homicide. The court held that the bar owed no duty to the child to protect her from the driver and that, in any case, whether such responsibility should be imposed was for the legislature, not the court, to decide.  A dissenting opinion extrapolated from social science research that imposing liability on bars, something known as dram shop liability, would reduce drunk driving deaths by 6.4%, which, in Maryland, would save 14 people per year from deaths due to drunk driving.

Both Coleman and Warr provide examples of a court, vested with authority to manage the common law and adapt it to the times, ceding its authority to the legislature. Where legislative stalemate is all too common and the law must adopt to changed circumstances and the lessons of experience, judicial deference of the sort envisioned by these cases does not serve the cause of justice.

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.

Yesterday, the Wake County Superior Court heard argument on the constitutionality of North Carolina’s recently enacted cap on noneconomic damages in medical malpractice cases. In Kyle v. Kamm, McKenzie, Harden, Smith, Bass, Martson & Saacks, P.L.L.C., et al., the plaintiffs, Janice and Albert Kyle, alleged that the defendants’ negligence injured them in 2009 and 2010. In June 2011, the North Carolina General Assembly passed, over the veto of Governor Beverly Perdue, a cap on noneconomic damages in medical malpractice cases.

By the terms of the law, it applies to all actions filed on or after October 1, 2011, regardless of when the negligence occurred or when the claims accrued. The plaintiffs filed their medical negligence action within the statute of limitations for their claims, but after the effective date of the new law. In their complaint, the plaintiffs included a claim under North Carolina’s Declaratory Judgment Act seeking a declaration that the cap on damages is unconstitutional. Plaintiffs moved for judgment on the pleadings on their declaratory count on the grounds that the law is unconstitutionally retroactive as applied to them. CCL’s Valerie M. Nannery and North Carolina attorney Adam Stein participated in the hearing on behalf of the plaintiffs, arguing that the cap on damages cannot be applied to the plaintiffs’ causes of action that accrued before the effective date of the law because such a retroactive application of the law would impair the plaintiffs’ vested rights in violation of the North Carolina Constitution. 

Yesterday, in Goldenberg v. Woodard, Nos. 57232, 58151, the Nevada Supreme Court, sitting en banc, heard oral argument in an appeal from a jury verdict awarding an injured plaintiff Georgia Woodard compensatory damages for the injuries she sustained as a result of fraud and professional medical negligence.

CCL’s Andre M. Mura participated in oral argument on behalf of the injured plaintiff, arguing that Nevada law limiting non-economic damages in professional negligence cases did not apply to limit the damages awarded in this case, but that if the law limiting damages applies here, the Court should rule that it is unconstitutional. Nevada lawyer Peter Durney, who successfully tried the case in the district court, also participated in oral argument. He argued that the jury’s verdict on negligence and fraud was amply supported by the evidence introduced at trial. Audio of the oral argument is available on the Court’s website.

In its May 2013 issue, Trial Magazine has published an article written by CCL’s Andre M. Mura entitled “Damages Caps and Inviolate Rights.” The article looks closely at state Supreme Court decisions considering whether damages caps violate the “inviolate” right of trial by jury, including recent decisions by the Missouri and Kansas Supreme Courts, which reached opposite conclusions.

The 2013 Special Issue of the Maryland Association for Justice's Journal, Trial Reporter, includes two articles covering CCL cases.  The first, Has the Time Come for Comparative Negligence in Maryland? by David Wildberger discusses Coleman v. Soccer Association of Columbia.  The second, Is Dram Shop Liability Coming to Maryland? by Chaz Ball and Lucy Hirsch discusses Warr v. JMGM Group, LLC.  CCL's John Vail is counsel in both cases.