Federal Court Hears Challenge to New Florida Medical Malpractice Law

September 18th, 2013

Hearing the first challenge to a new Florida law that raises serious privacy concerns, U.S. District Court Judge Robert Lewis Hinkle wondered aloud why any judge would not see the new law as a violation of federal privacy rights.  The Florida law, passed earlier this year and which went into effect July 1, requires a prospective medical-malpractice plaintiff to authorize doctors, their lawyers and their insurers to interview a medical-malpractice plaintiff’s treating physicians without the plaintiff’s lawyer present, beginning 90 days before any lawsuit is brought.  Known in the law as an “ex parte” interview, because only one side of the dispute is present, the law dissolves the doctor-patient privilege, as well as rights guaranteed by the federal Health Insurance Portability Accountability Act (HIPAA).  HIPAA requires that private health information remain private except in certain specific circumstances, such as a result of a court order that follows an opportunity for the patient to object to the disclosure of information unnecessary for the defendant to prepare his defense or where a plaintiff signs a valid authorization.  

Previously, Florida law did not permit ex parte interviews because, as the Florida Supreme Court stated, “were unsupervised ex parte interviews allowed, plaintiffs ‘could not object and act to protect against inadvertent disclosure of privileged information nor could they effectively prove that improper disclosure actually took place.”  Other state courts have pointed out that an ex parte interview carries the danger that ““the physician witness might feel compelled to participate in the ex parte interview because the insurer defending the medical malpractice defendant may also insure the physician witness.”

In Doe v. Dulay, the case before Judge Hinkle, who sits on the federal district court for the Northern District of Florida, CCL President Robert S. Peck argued on September 18 that the Florida law could not be reconciled with the privacy guarantees of HIPAA. 

 “While HIPAA permits a State to enhance privacy rights,” Peck told the judge, “the Florida statute plainly detracts.”  Peck argued that the authorization required by the Florida law to begin the presuit process in that state was not voluntary, lacked necessary specificity, requires revelation of private health information not relevant to the dispute, contained no meaningful right to revoke or to object, and constituted an impermissible compound authorization.  Even the provision that allows a patient to list doctors and dates of treatment that are not subject to ex parte interviews forces the revelation of private information protected by HIPAA.

The defendant doctor’s attorney and the Florida Attorney General’s office both argued that the mandatory authorization form required for commencing the presuit process was voluntary because bringing a lawsuit is a voluntary act.  In addition, even though the authorization form must be signed under state law 90 days before bringing any lawsuit, both opponents asserted that the declaratory judgment sought by the plaintiff in this case was premature.

 Judge Hinkle did wonder why federal injunctive relief was needed at this time, when he believed any judge would find the Florida law invalid.  Peck answered that no prudent lawyer would take a chance that the underlying medical malpractice claim would be dismissed for failure to follow Florida procedure when a valid federal lawsuit could settle the issue in advance.   The judge indicated that he would try to come to a quick decision in the case.

CCL Challenges Ex Parte Communications

August 13th, 2013

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

Maryland's Highest Court Refuses to Exercise Authority Over the Common Law

July 26th, 2013

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.

CCL President Featured Speaker on Supreme Court, Appellate Practice at ABA Meeting

April 26th, 2013

The joint Spring Meeting of the ABA’s Judicial Division and Tort, Trial and Insurance Practice Section in Washington, D.C. featured CCL President Robert S. Peck in continuing legal education sessions on Supreme Court practice and on appellate issues.

Peck moderated a conversation about Supreme Court practice with former Solicitor General Paul Clement, former acting Solicitor General Neal Katyal, and Assistant Attorney General Beth Brinkman.  Including Peck, the four Supreme Court practitioners represent more than 100 oral arguments before the Court.  The panelists discussed differences in practicing before the Supreme Court at each stage of the process from other appellate courts. The Supreme Court session took place April 25.

The following day, Peck was a panelist on issues between trial and appellate courts.  In addition to Peck, other panelists included Chief Judge Eric Washington of the District of Columbia Court of Appeals, U.S. Magistrate Judge Jeffrey Cole of the Northern District of Illinois, retired Maryland Judge William D. Missouri, and lawyer Denise Dimascio.  The panel discussed preservation of issues and other issues that come up during an appeal.

CCL Amicus Brief Addresses Novel Tax Treatment of FELA Injury Judgment

April 10th, 2013

In an amicus brief filed this week in the Missouri Court of Appeals, CCL Senior Counsel Jeffrey White argued that an employer is not entitled to withhold taxes from a judgment awarded under the Federal Employee Labor Act.  The issue arose after a jury awarded Lawrence Mickey nearly $400,000 against BNSF Railway under FELA for a permanently disabling injury to his back and knees. The employer railroad tendered payment after withholding Railroad Retirement and Medicare taxes. The trial court declined to credit BNSF for payment of the full judgment.

In the Missouri Court of Appeals, the railroad, with amicus support from the IRS, contends that, although the injury payments are excluded from “income” for federal income tax purposes, they are “wages” and “compensation” for purposes of federal employment taxes, including Medicare and Railroad Retirement taxes.  This appears to be an unprecedented change in the IRS position on the taxability of personal injury awards, which could chill the pursuit of some FELA actions and make settlement more difficult. CCL's brief was filed on behalf of the American Association for Justice in the Missouri Court of Appeals on April 9.

Philadelphia federal court struck a blow this week against intimidation of medical expert witnesses

April 5th, 2013

A Philadelphia federal court struck a blow this week against intimidation of medical expert witnesses, awarding almost $200,000 in a false light claim brought against the American Association of Orthopaedic Surgeons (AAOS). Decision.

The case was reported in BNA’s Health Law Reporter, with extensive commentary from CCL attorney John Vail.  CCL was a pioneer in fighting intimidation of medical expert witnesses by medical professional societies.

In the Philadelphia case, Dr. Stephen Graboff was awarded damages when the AAOS published results of its internal disciplinary proceedings, knowing those proceedings excluded evidence showing Graboff had committed no misconduct.

A decade ago a favorable Seventh Circuit decision encouraged medical societies to create systems for “peer review” of medical expert testimony, systems in which self-interested doctors reviewed expert testimony of doctors who had the temerity to testify on behalf of plaintiffs.  A well-reasoned decision from Florida, Fullerton v. Fla. Med. Ass'n, Assoc., 973 So.2d 1144 (Fla. 1st DCA), Opinion Withdrawn &  Superseded on Denial of Reh’g by 938 So.2d 587 (Fla. 1st DCA 2006), argued by Vail, helped put the brakes on the effort, as did a $350,000 defamation verdict in a Minnesota case Vail co-counseled, Yancey v. Weis (Dist. Ct., 4th Dist. Minn. 2009).

The BNA piece quotes Vail describing the rigors of cross-examination in a medical malpractice trial, the superiority of that method for finding truth, and how extra-judicial review of expert testimony is incompatible with trials.

U.S. Supreme Court Denies Review in ERISA Reimbursement Case

April 1st, 2013

The Supreme Court has denied certiorari in Treasurer, Trustees of Drury v. Goding, ending the long-running effort by an ERISA health plan to impose a duty on a plaintiff’s law firm to reimburse the plan for medical benefits paid to the plaintiff. The plan argued that, after obtaining a settlement from the tortfeasor, the law firm owed a duty to reimburse the plan for medical benefits provided to the plaintiff, rather than remit the proceeds to the firm’s client. The Eighth Circuit rejected such a duty. 692 F.3d 888 (8th Cir. 2012), reh. and reh. en banc denied, Nov. 12, 2012. The Supreme Court denied review on March 25, 2013. CCL's Jeff White represented plaintiff and his law firm.

Maryland's Highest Court Urged to Adopt Dram Shop Liability

March 13th, 2013

A bar that kept serving a drunk patron should be liable for the death of a ten-year-old girl caused when the inebriated patron left the bar and took the wheel of his car and crashed into the dead girl’s family car, CCL lawyer John Vail told Maryland’s highest court yesterday.  In so arguing, Vail asked the court to adopt dram shop liability, something that Maryland law does not currently provide.

The Dogfish Head Ale House served at least twenty drinks to Michael Eaton, cutting him off once but then re-opening his tab, before he left the bar and, three miles away, slammed into a car carrying Jazimen Warr and her family.  Jazimen was killed and the other family members were injured.  Eaton was traveling at least 88 miles per hour in a 55 mph zone and was later imprisoned for vehicular homicide.

Vail acknowledged that twice before, the last time in 1981, the court had refused to impose dram shop liability.  He told the court that developments in decisions in 1992, and again in 2009, had effectively had overruled the prior decisions. 

An active bench peppered Vail with questions regarding how broadly or narrowly liability might be imposed and about its effects on Maryland’s small businesses.  Vail noted that social science reliably could predict that imposing such liability would save 15 to 25 lives per year in Maryland.

The case is Warr v. JMGM, LLC.  A decision is expected by July.

Coverage by the Maryland Daily Record can be found here.

CCL Argues Before Mississippi Supreme Court in Two Consolidated Appeals

December 3rd, 2012

The Mississippi Supreme Court held an extended, one-hour-and-thirty-minute oral argument in two consolidated appeals, Texaco, Inc. & Chevron Corp. v. Rosalyn Simon, No. 2010-CA-01921. CCL’s Andre M. Mura and Robert S. Peck both argued on behalf of the Plaintiffs/Appellees.

 In this appeal, Texaco and Chevron are challenging a jury verdict in favor of young adults and a child injured when, during the terms of their pregnancies, they were exposed to leaded gas that leaked from underground storage tanks. The jury found that Texaco was the owner of the tanks and gas and was negligent for failing to inspect or maintain the tanks. It awarded compensatory damages to be paid by Texaco and Chevron, which merged with Texaco in the 1990s. The evidence at trial demonstrated that Texaco had purchased the tanks from Sinclair Oil in the late 1960s; this sale of personal property did not implicate the statute of frauds (which only applies to the sale of land) and thus was proven through tax receipts, custom and practice evidence, and oral testimony. Evidence at trial also demonstrated that 78 percent of such tanks fail after 10 or 20 years of service. The tanks at issue in this case had been in service for decades when Texaco purchased them; yet Texaco never inspected or maintained them. Lastly, plaintiffs established at trial that exposure to leaded gas was the cause of their injuries. On appeal, Texaco has denied ownership of the tanks, and has challenged the probity of Plaintiffs’ causation evidence. Chevron has argued that the judgment should apply only to Texaco, because it has no presence in Mississippi and thus is outside the jurisdiction of its courts, and because, as a matter of corporate law, it should not be held liable for Texaco’s negligence.

Maryland’s Highest Court to Rule on Dram Shop Liability

October 31st, 2012

Maryland could save 15 to 25 lives a year by making bars responsible for serving drinks to visibly intoxicated persons, CCL told the Maryland Court of Appeals in a brief filed today, representing the plaintiffs.  Maryland now is one of just a few states that do not impose what is known as dram shop liability.   

The Dogfish Head Ale House in Gaithersburg, Maryland, served at least 21 drinks to an obviously intoxicated Michael Eaton.  Within 45 minutes of driving away from the bar, Eaton reached a speed of at least 88 miles per hour when he plowed into the rear of the Warr family’s car, killing ten-year old Jazimen and seriously injured three other members of her family.  Eaton pleaded guilty to vehicular manslaughter and is now in prison.

“This case is an effort to hold the bar that caused this tragedy responsible for its actions, “ said CCL lawyer John Vail, counsel for the plaintiffs.  Vail further explained that the Maryland Court of Appeals already has endorsed the principles that lead to dram shop liability, reversing two older cases without naming them.  “It simply needs to apply those principles to this case,” Vail noted.

Mothers Against Drunk Driving and the Maryland Association for Justice filed amicus briefs supporting the plaintiffs.  The plaintiffs also are represented by Andy Bederman and Jason Fernandez of Greenberg and Bederman in Silver Spring, MD.

The case, Warr v. JMGM Group, LLC, will be argued by Vail on March 12, 2013.