CCL Update Courtesy of AAJ President Burton LeBlanc

I am pleased to report that the Center for Constitutional Litigation has won a tremendous victory that will protect the privacy of medical malpractice plaintiffs' health care information from invasion by the doctors who caused their injuries and the doctors' insurers, helping members of the Florida Association for Justice and the American Association for Justice who practice in Florida.

At issue in Murphy v. Dulay was a new Florida law that went into effect on July 1, 2013, and that changed pre-suit requirements in medical malpractice actions. The new law required injured plaintiffs to "authorize" medical malpractice defendants, their insurers, and their attorneys to conduct ex parte interviews with the plaintiff's other health care providers without any oversight by the courts or any opportunity for notice or objection by the patient. In this case filed as a declaratory judgment action in the U.S. District Court for the Northern District of Florida, CCL argued that the new state law is preempted by the Health Insurance Portability and Accountability Act (HIPAA).

HIPAA not only limits how, when, and why health care providers can disclose private health information, but it also delineates how private health information can be disclosed in legal proceedings. For example, HIPAA mandates that there be an opportunity to object to specific information being sought for use in court, and any information ordered disclosed by a court should be no more than the minimum necessary for the legal proceeding. In other words, if the medical records are sufficient, there is no need for ex parte interviews with health care providers.

CCL, working with Florida lawyers Neal Roth, David Bruckner, and Dana Brooks, filed a complaint for declaratory and injunctive relief shortly after the new law went into effect. Both the defendant and the State of Florida, which intervened to defend the state law, filed motions to dismiss. After full briefing, the court heard oral argument on September 18, with CCL President Robert S. Peck arguing on behalf of the plaintiff.

One week later, on September 25, the district court denied the motions to dismiss and granted plaintiff's motion for an injunction against operation of the new law. The court held that the new Florida law is invalid because it is contrary to federal law, and enjoined the defendant and those in concert with him from conducting ex parte interviews with the plaintiff's other health care providers except as allowed by federal law.

The defendant doctor, supported by the Florida Medical Association, has filed a notice of appeal. Peck will handle the appeal.

AAJ Retains CCL to Protect the Plaintiff Practice

The mission of the American Association for Justice–to promote a fair and effective justice system and to support the work of attorneys who help people injured by the misconduct and negligence of others obtain justice in America's courtrooms–is carried out a number of ways. One way AAJ does this is by retaining CCL to work on certain cases involving important access to justice issues where there are no attorney's fees available and an important precedent is at issue. The AAJ retainer allows CCL to litigate cases challenging limits on access to the courts where there otherwise would not be resources to challenge those laws. AAJ also retains CCL to file amicus briefs in the highest courts in cases involving issues important to the plaintiffs' bar and AAJ's mission.

CCL's work in Murphy v. Dulay was made possible by AAJ's retainer. Under AAJ's retainer, CCL has done more work to help trial lawyers in Florida than it has done in any other state.

Making a Difference

Florida Justice Association Executive Director Debra Henley says, "CCL was an invaluable resource to the FJA during the legislative session, as we were able to gauge the potential constitutional problems with the various proposed restrictions on the rights of medical malpractice victims. Once the legislative package passed, CCL answered the call to come to meet with us and strategize on best way to get the offending provisions in front of the courts."

Ken Sobel, current Chair of the FJA Legislative Challenge Committee, worked with CCL and arranged for Peck to strategize with the FJA committee when it met this summer.

Sobel said, "I was honored to work with CCL President, Bob Peck. We started our work in late May and by July 1st, the effective date of the statute, Bob had assisted us in preparing five complaints—two state court and three federal, in a coordinated defense of patient privacy. Immediately, we had to prepare memoranda of law on a host of issues.... Bob's pleadings, his memoranda of law, preparation, and oral argument have benefited injury victims who will never know his name or thank him. On their behalf, my committee and I thank him and feel deeply indebted to the AAJ for sponsoring his efforts on our behalf."

"We greatly appreciate the tremendous expertise that the CCL brings to the table for states facing similar challenges," says Henley.