A Tallahassee-based federal judge has scheduled a Sept. 18 hearing in one of a series of lawsuits aimed at blocking a controversial medical-malpractice law that Gov. Rick Scott signed in June. U.S. District Judge Robert Hinkle will hear arguments about issuing a temporary restraining order and preliminary injunction. The challenges contend that the law could violate patients' privacy rights because of changes dealing with a legal concept known as "ex parte communications." Critics say the law could lead to the improper disclosure of personal health information to defense attorneys representing doctors or other health providers. Supporters of the law have argued, in part, that it would give defense attorneys access to information that plaintiffs' attorneys already can review and that it is a fairness issue.

Arguing the constititutional and federal law issues is Robert Peck, founder and president of the Center for Constitutional Litigation (CCL) in Washington, D.C.  Bob has previously collaborated with FJA on constitutional issues and appeared before the Florida Supreme Court. 

Mr. Peck's efforts on contitutional issues in the state of Florida is supported by The American Association for Justice (AAJ).


On July 1st, FJA member attorneys from around the state joined together to file legal challenges to the constitutionality of “ex parte communications” authorized by Florida Senate Bill 1792. The complaints claim the new law is a violation of the right to privacy as guaranteed by the Florida Constitution.  The complaints also allege the law is a violation of the federal Health Insurance Portability and Accountability Act (HIPAA). 

 On June 5, 2013, Florida Governor Rick Scott signed into law Senate Bill 1792, which allows for “ex parte communications” in medical negligence cases.  Ex parte communications are private conversations about a patient’s medical condition between defense attorneys and a patient’s nonparty, treating physician without the patient or the patient’s attorney present.  The law becomes effective today.

 “With everything that is happening in the federal government right now involving the invasion of privacy of U.S. Citizens by their government, it is appalling to know that in Florida, our Legislature and governor have authorized doctors to divulge their patients’ personal, private medical history to complete strangers,” said Debra Henley, executive director of the Florida Justice Association.  “On a week where our country celebrates all of the rights and liberties we hold dear as citizens, it is disheartening to know that our right to privacy no longer appears to be one of them.”

Opponents of the law are concerned that allowing lawyers to engage in ex parte communications will cause patients to withhold vital information from their doctors that could prevent effective treatment.  Another concern is that such communications could lead to malpractice insurers, represented by the attorney, using those communications to threaten or intimidate the doctor from testifying in a medical negligence case or the victim from filing the case in the first place.  

“When no one is present to protect the victim, sensitive medical information may be disclosed, no matter how irrelevant, personal, or embarrassing it may be to the patient,” explained Henley. “What is worse is that the attorney can do whatever he or she wants to with that sensitive information.”

Three federal and two state complaints were filed July 1, 2013:

Dana Brooks, of Eubanks, Barrett, Fasig & Brooks in Tallahassee, filed a federal complaint in the United States District Court in the Northern District of Florida.

John Doe vs. Adolfo C. Dulay, M.D. and Adolfo C. Dulay, M.D., P.A.

Neal Roth, of Grossman Roth, P.A. in Coral Gables, filed a federal complaint in the United States District Court in the Southern District of Florida.  (Miami)

Jane Doe vs. Palm Beach Obstetrics & Gynecology, LLC and St. Mary’s Medical Center

Sean Domnick, of Domnick & Shevin, P.L. in Palm Beach Gardens, filed a federal complaint in the United States District Court in the Southern District of Florida.  (Palm Beach)

Janice Lee vs. Bethesda Hospital, Inc.

Ken Sobel, of Freedland Harwin, P.L. in Ft. Lauderdale, filed a state complaint in the Circuit Court of the 17th Judicial Circuit (Broward).

Annie Hintz, individually and as Personal Representative of the Estate of Samuel Hintz vs. Bennett Salamon, M.D.

Virginia Buchanan, of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola, filed a state complaint in the Circuit Court of the First Judicial Circuit (Escambia).

Emma Gayle Weaver, individually, and as Personal Representative of the Estate of Thomas E. Weaver, deceased, vs. Stephen C. Myers, M.D.

Also see this article published on the Orlando Sentinel site:

"Malpractice lawyers say new state law violates patient privacy"