United States: Florida Supreme Court Strikes Defendants' Ex Parte Interviews With Treating Physicians

Tiffany Roddenberry is an Associate for Holland & Knight's Tallahassee office.

Jerome Hoffman is a Partner for Holland & Knight's Jacksonville office.

HIGHLIGHTS:

  • The Florida Supreme Court has dealt a significant blow to Florida's medical malpractice pre-suit process, ruling that statutes authorizing the conduct of informal, ex parte interviews with a medical malpractice claimant's treating physician are unconstitutional.
  • In 2013, the Florida Legislature expanded informal discovery tools for prospective medical malpractice defendants by essentially requiring a claimant to allow the prospective defendant to informally interview the claimant's treating physician without the claimant or his or her attorney present.
  • In its 4-3 decision in Weaver v. Myers, the Florida Supreme Court struck the 2013 statutory amendments as violating the constitutional rights of privacy and access to courts.

With its decision in Weaver v. Myers, issued on Nov. 9, 2017, the Florida Supreme Court struck a significant blow to Florida's medical malpractice pre-suit process, ruling that statutes authorizing the conduct of informal, ex parte interviews with a medical malpractice claimant's treating physician are unconstitutional.

Background

Under Florida law, prior to filing a medical malpractice lawsuit, a claimant must satisfy certain statutory pre-suit requirements. These statutes also authorize the use of certain informal discovery tools that allow prospective defendants to facilitate investigation and evaluation of the claim before suit is filed. In 2013, the Florida Legislature expanded those tools by essentially requiring a claimant to allow the prospective defendant to informally interview the claimant's treating physician without the claimant or his or her attorney present.

Emma Weaver, individually and as personal representative for her late husband's estate, filed suit against Dr. Stephen Myers, claiming Dr. Myers' medical care led to her husband's death. As part of that suit, Weaver challenged the constitutionality of the 2013 statutory amendments.

Florida Supreme Court Decision

In a 4-3 decision, the Florida Supreme Court struck the 2013 statutory amendments as violating the constitutional rights of privacy and access to courts. Writing for the majority, Justice Fred Lewis first made clear that Weaver's late husband's privacy right survived his death and could be raised by his wife in these proceedings. As to the constitutional privacy claim, the Court held that the statutory amendments unconstitutionally require claimants to waive the right to privacy as to both relevant and irrelevant medical information.

The majority rejected the reasons given to justify the legislation – to encourage settlement by providing equal access to relevant information, to screen out frivolous claims, and to streamline medical malpractice litigation – as not "sufficiently compelling" to outweigh patient privacy rights under the Florida Constitution. Even if those reasons were compelling, Justice Lewis wrote, authorizing "clandestine, ex parte secret interviews is far from the least intrusive means to accomplish those stated goals." The Court also held that the amendments violated the constitutional right of access to courts because they coerced claimants into foregoing their fundamental right to privacy in order to exercise their fundamental right to access to courts.

The Dissent

In a dissent joined by Justices Alan Lawson and Ricky Polston, Justice Charles Canady wrote that the majority ignored both that the 2013 amendments require only the disclosure of relevant medical information and that well-established law recognizes that a claimant waives the right to privacy with respect to "relevant" medical information by filing a medical malpractice suit.

Justice Canady also said that the majority's decision was difficult to reconcile with numerous prior decisions in which the issue of ex parte interviews of treating physicians in medical malpractice cases arose and yet the Court recognized that the underlying confidentiality right – i.e., physician/patient confidentiality – was created by the Legislature. In short, the dissent said, the Legislature was within its bounds to carve out a limited, HIPAA-compliant exception to a legislatively created right in order to place plaintiffs and defendants on a level playing field with respect to access to certain important nonparty fact witnesses – treating physicians. And, the dissent said, because the 2013 amendments did not "require" a waiver or forfeiture of any privacy rights that are not already waived by the plaintiff's own action in pursuing a malpractice claim, the amendments cannot unconstitutionally condition a plaintiff's right of access to courts on the waiver of the right to privacy.

Takeaways and Considerations

Through Weaver, the Florida Supreme Court has taken away another tool for prospective defendants to weed out frivolous or unsupported medical malpractice claims and to gain valuable information regarding meritorious ones prior to going to court. The decision also demonstrates the current Court's increased willingness to scrutinize any legislation, particularly legislation that affects plaintiffs' rights to bring litigation.   

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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