UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION COMPLAINT FOR DECLARATORY JUDGMENT I.

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1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION JANICE LEE, ) ) Case No. Plaintiff, ) ) vs. ) ) BETHESDA HOSPITAL, INC. ) ) Defendant. ) ) COMPLAINT FOR DECLARATORY JUDGMENT I. INTRODUCTION 1. This is a challenge under federal law to a Florida statute, enacted as S.B and designated as Chapter , Laws of Florida, which goes into effect July 1, That statute, which applies to suits for medical malpractice, authorizes presuit ex parte contacts by potential defendants with the health care providers for claimants and the unlimited and unfettered release of personal health information to those defendants without the valid consent of claimants in direct violation of the prohibitions contained in and federal rights secured by the Health Insurance Portability and Accountability Act and its regulations, all under penalty of the prohibition of the claimant s suit for damages. (See Copy of Statute attached as Ex. A ). 2. Plaintiff Janice Lee is a person contemplating filing a medical-malpractice action against Defendant Bethesda Hospital, Inc. for injuries sustained as a result of medical care that did not meet the prevailing standard of care. She has not yet filed a notification of an intent to sue pursuant to state law, , Florida Statutes. That statute requires counsel for the plaintiff in a medical malpractice action to give each prospective defendant a notice of intent to initiate litigation 90 days before filing suit in court (known as presuit ). Along with the notice 1

2 of intent, pursuant to the newly enacted Chapter , plaintiff would be required to provide a release authorizing the defendant to have ex parte communications with all of her treating health care providers with no procedural safeguards in place to prevent the Defendants unfettered access to her personal health information. She is entitled to a declaration of her federal rights and a determination of the requirements of HIPAA, which she contends preempts Chapter prior to being forced to provide the releases allowing ex parte communication. There would be no way to put the cat back in the bag once her federally protected rights have been violated. 3. Defendant Bethesda Hospital is a health care provider in Palm Beach County, Florida, which is likely to be named a defendant in a state medical-malpractice action by Plaintiff and who, upon information and belief, will seek to use the authority provided by Chapter to obtain personal health information about Plaintiff and engage in potentially unlimited ex parte communications with her health care providers under this state law. 4. Plaintiff seeks a declaration that the presuit authorization of Defendants ex parte communications with her physicians and other health-care providers and the scope of information authorized for release by Chapter violates her federal rights under the federal Health Insurance Portability Accountability Act of 1996 ( HIPAA ), Pub. L. No , 110 Stat (codified as amended in various sections of Titles 18, 26, 29, and 42 of the United States Code). In order to evaluate whether she may assert her federal rights under HIPAA Plaintiff requires a declaration of her rights under HIPAA. II. JURISDICTION AND VENUE 5. This Court has jurisdiction over the federal questions raised in this Complaint under 28 U.S.C and

3 6. This Court also has jurisdiction pursuant to 28 U.S.C. 1343(a)(3), which opens the federal courts to any civil action authorized by law to be commenced by any person... [t]o redress the deprivation, under color of any State law..., of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. 7. This action is authorized by 42 U.S.C. 1983, under which any person aggrieved by the violation of federal rights under color of state law may file a civil action in federal court for monetary, declaratory, or injunctive relief. Plaintiff has no adequate remedy at law for the violation of her federal rights alleged herein. 8. Venue is proper in this District under 28 U.S.C. 1391(b). Plaintiff and Defendants reside in this District. PARTIES 9. Plaintiff Janice Lee is a resident of Palm Beach County, Florida. 10. Defendant, Bethesda Hospital, is a health care provider, providing hospital services in Palm Beach County. The issues at hand, and the negligence that would form the basis of the presuit and subsequent lawsuit, occurred at Bethesda Hospital, 2815 S. Seacrest Boulevard, Boynton Beach, FL A courtesy copy of this Complaint will be served on the State s Attorney for the 15 th Judicial Circuit in and for Palm Beach County, Florida. III. STATUTORY PROVISIONS AT ISSUE 11. S.B passed the Florida Senate on April 11, 2013, and passed the Florida House of Representatives on May 1, It was signed by Florida Governor Rick Scott on June 5, 2013, and designated by the Florida Secretary of State as Chapter

4 12. Chapter amends , Florida Statutes, to permit disclosure to a health care practitioner s or provider s attorney during a consultation if the health care practitioner or provider reasonably expects to be deposed, to be called as a witness, or to receive formal or informal discovery requests in a medical negligence action, presuit investigation of medical negligence, or administrative proceeding of any information a patient has conveyed to his or her health care or medical practitioners. S.B. 1792, 2013 Sess., 1 (Fla. 2013) (Ch (amending (7)(d)(4), Fla. Stat.)). This would necessarily include personal health information covered by HIPAA. 13. It further provides that: A prospective defendant or his or her legal representative may interview the claimant s treating health care providers consistent with the authorization for release of protected health information. This subparagraph does not require a claimant s treating health care provider to submit to a request for an interview. Notice of the intent to conduct an interview shall be provided to the claimant or the claimant s legal representative, who shall be responsible for arranging a mutually convenient date, time, and location for the interview within 15 days after the request is made. For subsequent interviews, the prospective defendant or his or her representative shall notify the claimant and his or her legal representative at least 72 hours before the subsequent interview. If the claimant s attorney fails to schedule an interview, the prospective defendant or his or her legal representative may attempt to conduct an interview without further notice to the claimant or the claimant s legal representative. Ch (amending (6)(b)(5), Fla. Stat.) (emphasis added). 14. In addition, Chapter provides a standardized form, which authorizes defendants to access a prospective plaintiff s protected health information held by the plaintiff s treating physicians, in addition to information held by the prospective defendant health care providers, their insurers, and attorneys designated under preexisting Florida law, without regard to the rules governing discovery or the relevance of that information to the claim, well exceeding 4

5 the limited release of such information permitted under HIPAA. See Ch (amending , Fla. Stat.). 15. The above-described authorization form expressly allows the persons or class of persons listed... to interview the health care providers listed... without the presence of the Patient or the Patient s attorney and requires no notice of such an interview. Ch , (amending (6)(b)(5), Fla. Stat.). Nor does this authorization or the statute provide Plaintiff the opportunity to object to the scope and extent of the information obtained by Defendants in presuit. Because presuit occurs before the filing of suit and the assignment of a judge to preside over the matter, there is no judicial officer to whom Plaintiff can direct a pleading seeking to limit, to that which is relevant to the potential malpractice claim, the unlimited scope of the ex parte inquiry that Defendants are free to conduct. This is in direct contravention of HIPAA, which requires that even with regard to the limited intrusions into personal health information permitted, such intrusions be minimized in scope. 16. The statute places the burden on the claimant or the claimant s legal representative... for arranging a mutually convenient date, time and location for the [ex parte] interview within 15 days after the request is made. Ch (amending (6)(b)5), Fla. Stat.). Failure to schedule an interview authorizes the prospective defendant or defendant s lawyer to conduct an interview without further notice to the claimant or the claimant s legal representative. Id. Failure to comply with the statute renders presuit void and deprives claimants of the right to proceed with litigation. 17. The statute acknowledges that it implicates federal Standards for Privacy of Individually Identifiable Health Information in 45 C.F.R. parts 160 and 164, Ch , 5

6 (amending (6)(b)(5), Fla. Stat.), which were promulgated pursuant to HIPAA. However, other than so acknowledging, the statute does little to conform itself to HIPAA. 18. HIPAA generally requires that health-care providers, physicians, clinics, and hospitals safeguard and protect patient information, using that information only, to the minimum amount necessary, to perform tasks of treatment, payment, and healthcare operations. It directed the Secretary of Health and Human Services to promulgate regulations with respect to the privacy of individually identifiable health information. See 42 U.S.C. 1320d The Secretary subsequently promulgated those regulations, the last revision of which went into effect in March These regulations establish a set of national standards for the protection of certain health information, addressing the use and disclosure of individuals health information. U.S. Dep t of Health and Human Services, Office for Civil Rights (OCR) Privacy Brief, Summary of the HIPPA Privacy Rule (last revised 5/03), Introduction, at 1, available at The regulations specifically provide that health care providers may not disclose protected health information except as permitted or required by this subpart or by subpart C of part 160 of this subchapter. 45 C.F.R (a). 22. The information protected under the regulations includes an individual s past, present, or future physical or mental health or condition, the provision of health care to the individual, or the past, present, or future payment for the provision of health care to the individual, as well as information that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual. 6

7 23. With respect to judicial or administrative proceedings, the HIPAA regulations permit disclosure by an order from a court or administrative tribunal. 45 C.F.R (e)(1). 24. When not permitted by a court order in the context of a judicial proceeding, private health care information may be disclosed consistent with HIPAA and in response to a subpoena, discovery request, or other lawful process only when reasonable efforts have been made to provide notice of the request or if a qualified protective order is obtained. 45 C.F.R (e)(1)(ii). 25. The regulations expressly preempt contrary state law, except to the extent state law is more protective of patient privacy than federal law. Because of, among other things, the absence of appropriate protections and limitations on the scope and extent of the intrusion into personal health information that it allows, Chapter is contrary to HIPAA and is therefore preempted by it. IV. DECLARATORY JUDGMENT ACT ALLEGATIONS 26. Under 28 U.S.C and 2202, this Court has the power to order declaratory relief even if no other relief is requested or granted. Plaintiff respectfully requests a declaration of her federal legal rights under HIPAA with respect to Chapter s authorization of the release of personal health information and ex parte communications with her health care providers. 27. HIPAA protects personal health and medical information from uses not related to medical and health care. 28. HIPAA contains exceptions for judicial proceedings that permit limited, essential disclosure of personal health information and specifies the procedure for obtaining this information, namely, through notice and court order, subpoena, or a discovery request pursuant to judicial rules. 7

8 29. Chapter authorizes procedures at variance from, and in derogation of, what is authorized by federal law, specifically HIPAA. 30. Chapter permits pre-litigation ex parte interviews of a prospective plaintiff s health-care and medical-care providers, which will necessarily involve the disclosure of protected health information, without notice or the issuance of a qualified protective order or other court order, in contravention of the requirements in the HIPAA regulations. 31. Because the actions permitted under Chapter will by definition occur prior to the initiation of litigation (that is, during the presuit process), the legislation contains no mechanism for, and effectively does not allow, judicial review to determine the relevance, burden, or necessity of the information sought by defendant s counsel or any other person authorized by Chapter Accordingly, HIPAA preempts these contrary procedures. V. PRAYER FOR RELIEF WHEREFORE, Plaintiff Janice Lee respectfully requests that this Court grant the following relief: a. A declaration that Chapter , because of its authorization of ex parte and other access to Plaintiff s personal information is preempted by HIPAA, see 42 U.S.C. 1320d- 7(a)(1), and its regulations, 45 C.F.R (e); c. An award to Plaintiff of its costs and expenses of litigation; and d. Any such other and further relief as the Court may deem just and proper under the circumstances. 8

9 Dated this 1st day of July, Respectfully submitted, SEAN C. DOMNICK, ESQ. Florida Bar No.: Domnick & Shevin PL 5100 PGA Boulevard, Suite 317 Palm Beach Gardens, Florida Phone: (561) Fax: (561) Attorney for Plaintiff 9