In this week’s Alabama Law Weekly Update, we review one opinion from the United States Court of Appeals for the Eleventh Circuit concerning the preemptive effect of HIPAA on state medical malpractice procedure, and another opinion from the Alabama Supreme Court addressing the limits of a court’s ability to circumscribe public discussion of pending litigation by attorneys representing the litigants.

Glen Murphy v. Adolfo Dulay, et al, 13-14637, 2014 WL 5072710 (C.A.11 (Fla.)) (holding that HIPAA does not preempt Florida pre-suit disclosure procedures)

In this decision, the Eleventh Circuit considered, and ultimately reversed, a declaratory judgment that Florida’s pre-suit disclosure obligations relative to a medical malpractice suit were pre-empted by the Health Insurance Portability and Accountability Act (“HIPAA”).

Florida Statute § 766.106 provides that a prospective medical malpractice plaintiff must give 90 days’ notice to the medical care providers he or she intends to sue, as a precondition to filing suit. In conjunction with that notice, Floridians are required by § 766.1065 to submit a HIPAA-compliant medical authorization, which then permits the recipient to investigate the claim through pre-suit interviews with the prospective plaintiff’s other medical care providers.

The Plaintiff in this case filed suit seeking a declaratory judgment that Florida’s statutory requirement that HIPAA notices be provided before suit can be filed was preempted by HIPAA. Plaintiff argued that, because the HIPAA authorizations were mandatory, such authorizations did not reflect true consent but were, rather, coerced. The Plaintiff further contended that, by effectively compelling medical authorizations without true consent, Florida Statute § 766.1065 contradicted HIPAA and thus should be declared null under federal preemption principles.

The District Court adopted Plaintiff’s argument and entered judgment declaring that the statue contradicted and was preempted by HIPAA, but the Eleventh Circuit reversed. In reversing, the Eleventh Circuit considered the purposes and implementing regulations surrounding HIPAA. Ultimately, the Court identified specific provisions in HIPAA that explicitly precluded mandatory HIPAA authorizations in certain circumstances (particularly, 45 C.F.R. § 164.508(b)(4) provides that treatment, enrollment or benefits eligibility may not be conditioned on execution of an authorization); requiring authorization as a precondition to suit was not expressly prohibited within HIPAA. Because HIPAA addresses certain types of mandatory authorizations, the Court found that, by implication, any mandatory authorization that is not expressly prohibited by HIPAA is implicitly acceptable. That being the case, since HIPAA failed to expressly prohibit pre-suit mandatory authorizations, Florida’s statute did not conflict with federal law and, accordingly, the Eleventh Circuit found that the statute was not preempted, and reversed the District Court on that ground.

Ex parte Myron K. Allenstein et al, 1130538 (AL 2014) (holding that trial court’s gag order not narrowly tailored and constituted an impermissible prior restraint)

In this decision, the Alabama Supreme Court analyzed the circumstances under which a court may limit an attorney practicing before it from discussing pending litigation in public.

The plaintiffs in this suit had initiated litigation against a termite company, arguing that the company fraudulently failed to provide any termite control services in spite of their representations to the contrary. Plaintiffs further sought to have the suit certified as a class action.

The termite company alleged that the law firm representing the plaintiffs took significant steps to publicize its clients’ version of events through the internet and social media. Particularly, the plaintiffs’ firm was alleged to have published the fraud allegations on its firm website and, further, used social media sites, like Facebook, to further publicize those allegations. The termite company further alleged that plaintiffs’ counsel had provided information to a news reporter, who had in turn used that information to produce an “expose”-style report on the termite company. Based on the foregoing, the termite company sought the entry of a protective order prohibiting the plaintiffs’ firm from discussing the case publicly or publishing allegations about the case on the internet or social media, and further requiring all previously published items to be removed.

The trial court entered relief in the termite company’s favor, requiring the removal of all internet or social media references to the case and prohibiting the plaintiffs’ firm from contacting any third party about the case, subject to an exception for discussing the case as necessary to prepare for trial (i.e. with witnesses and internally). The plaintiffs sought a writ of mandamus with the Alabama Supreme Court, arguing that the protective order amounted to a prior restraint in violation of the First Amendment.

The Supreme Court reversed the protective order, finding such order to be both overbroad under the First Amendment and inconsistent with Rules of Professional Conduct 3.6(c). The Supreme Court discussed substantial jurisprudence applying the First Amendment’s speech protections to speech concerning a pending lawsuit. The conclusion reached by the Court was that, while some limitations may be placed on the speech of parties who are before a court in a pending case to the extent necessary to prevent a substantial likelihood of prejudice to the other party’s right to a fair trial, such restrictions must be narrowly tailored and represent the least restrictive means of ameliorating such prejudice. Here, the Alabama Supreme Court found that the protective order – which prohibited “any extrajudicial reference” to, and required the removal of “all mention” of, the referenced facts – was not narrowly tailored to protect the termite company’s right to a fair trial. Particularly, the protective order would, on its face, prohibit discussions with potential clients concerning the termite company, discussions with putative class members, discussions with state regulators, discussions in the course of discovering evidence, and discussions with potential witnesses – none of which implicate the termite company’s right to a fair trial. Moreover, the Supreme Court found that Rules of Professional Conduct 3.6(c) expressly provides that an attorney may discuss certain informative aspects of a pending litigation, and that the protective order was further problematic in that it prohibited that expressly permitted conduct. Accordingly, the Alabama Supreme Court reversed the protective order, though it noted in doing so that the trial court was free to enter a more limited protective order, one which was more tailored to the conduct in question.