In the case of Weaver v. Myers, a sharply divided Florida Supreme Court recently struck down part of the 2013 amendments to Fla. Stats. §§766.106 and 766.1065, which govern the informal discovery process of the medical malpractice presuit requirements. In addition, the Florida Supreme Court held that under the Florida Constitution, the right to privacy is attached during the life of a citizen and cannot be retroactively destroyed by death. This ruling creates potential pitfalls for medical malpractice defendants. Through this decision, the Florida Supreme Court has made it more difficult for prospective defendants to evaluate a claim, identify frivolous cases and settle meritorious cases without protracted litigation.

Generally, before a medical malpractice action may be initiated, Fla. Stats. §§ 766.106 and 766.1065 require a claimant to perform a presuit investigation in compliance with Fla. Stat. § 766.203 to determine if reasonable grounds exist to believe that: (1) the defendant medical provider was negligent; and (2) the negligence caused injury to the claimant. Following that investigation, a claimant must give each prospective defendant a presuit notice of intent and make certain disclosures. See Fla. Stat. 766.106(2)(a). Additionally, the presuit notice must include an “Authorization for Release of Protected Health Information” in compliance with Fla. Stat. § 766.1065. This authorization is not a blanket authorization – it excludes health care providers who do not possess information that is potentially relevant to the claim. See Fla. Stat. § 766.1065(3)(c). In 2013, Fla. Stat. § 766.106 was amended to require a claimant to include a complete list of all health care providers seen by the claimant for injuries complained of and all known health care providers seen during the 2 year period prior to the alleged act of negligence. Fla. Stat. § 766.1065 was also amended in 2013 to authorize prospective defendants to conduct “ex parte” interviews of the claimant’s treating physicians identified in the presuit notice of intent as part of the informal discovery process. The amendments allowed such “ex parte” interviews to take place if the claimant’s attorney failed to cooperate in scheduling an interview requested by the defendant. In that case, the prospective defendant or his/her lawyers could unilaterally schedule the interview of claimant’s treating health care providers without notice to the claimant and without the presence of the claimant or the claimant’s attorney. See Fla. Stats. §§ 766.106(6)(b)(5); Fla. Stat. § 766.1065(3)(E).

In this case, Petitioner, Emma Gayle Weaver (“Weaver”), individually and as personal representative of the estate of her late husband, filed for declaratory judgment and injunctive relief against Dr. Stephen C. Myers. She alleged that the 2013 amendments violated the decedent’s right to privacy under the Florida Constitution. The Circuit Court and the District Court of Appeal both upheld the constitutionality of these amendments. The specific issues resolved by the Florida Supreme Court on appeal involved whether such “ex parte” communications between doctors and defense attorneys potentially violate the decedent’s right to privacy, and whether a citizen’s right to privacy survives death.

The Florida Supreme Court ruled that the right to privacy is not retroactively destroyed by death and held that in the wrongful death context, the administrator of the estate has standing to assert the decedent’s privacy rights. In its analysis, the majority noted that the “amended statutes have gashed Florida’s constitutional right to privacy.” The Court took issue with the fact that the 2013 statutory amendments required Weaver to disclose all medical information for the two years preceding the alleged medical negligence as a condition to filing a malpractice claim, regardless of its relevance to the claim. The Court explicitly held that the right to privacy may be invoked as a shield against the unwanted disclosure of protected private matters, including medical information that is irrelevant to any underlying claim. Justice Lewis further explained: “[d]eath does not retroactively abolish the constitutional protections for privacy that existed at the moment of death. To hold otherwise would be ironic because it would afford greater privacy rights to plaintiffs who survived medical negligence while depriving plaintiffs of the same protections where the alleged medical malpractice was egregious enough to end the lives of those plaintiffs.”

As it relates to the “ex parte” interviews, the Florida Supreme Court was concerned that the 2013 statutory amendments allowed for unsupervised interviews with no protection against the exposure of potentially irrelevant and constitutionally protected medical information. The majority also pointed out that the amendments failed to protect citizens from even accidental disclosures of private medical information that was unrelated to the claim. Such disclosures would be nearly impossible to address. Accordingly, the Florida Supreme Court declared the legislative authorization of “ex parte” interviews with physicians during pre-suit investigations unconstitutional, as they impermissibly intruded upon the fundamental constitutional right to privacy. The Florida Supreme Court, in this 4-3 decision, struck down those portions of the 2013 statutory amendments, quashed the appellate court’s decision, and remanded for further proceedings.

A prospective plaintiff already has “ex parte” and unfettered access to treating physicians in medical malpractice cases. The Florida Supreme Court’s decision to prohibit potential defendants from that same access puts prospective defendants at a disadvantage during the presuit investigation process. However, the Florida Supreme Court’s decision in this case is consistent with HIPAA regulations, which enforce the privacy of a deceased individual’s protected health information long after that individual’s death. Although HIPAA regulations allow for the disclosure of protected health information in judicial or administrative proceedings, notice to the affected individual or the individual’s legal representative is required. Further, nothing in the HIPAA regulations allow for “ex parte” disclosures of protected health information. Here, the Florida Supreme Court found that the 2013 statutory amendments were unconstitutional because the required disclosure of all (including irrelevant) medical information for the 2 year period leading up to the alleged negligence, as well as the “ex parte” nature of presuit interviews, impermissibly intruded upon the decedent’s constitutional right to privacy.