December 7, 2017, Trial News

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Florida Supreme Court holds amendments to med neg law are unconstitutional

Kate Halloran

photo of stethoscope and gavel

The Florida Supreme Court has struck down amendments to the state’s statutes regarding the filing of medical negligence claims. The amendments required plaintiffs to arrange ex parte interviews with their treating physicians at defendants’ request and other parties and did not require that the plaintiff or the plaintiff’s attorney be present at the interviews. The court determined that the amendments violated constitutional rights to privacy and access to the courts.
 

The Florida Supreme Court has struck down amendments to the state’s statute regarding the filing of medical negligence claims. The amendments required plaintiffs to arrange ex parte interviews with their treating physicians at defendants’ request and did not require that the plaintiff or the plaintiff’s attorney be present at the interviews. The court determined that the amendments violated constitutional rights to privacy and access to the courts. (Weaver v. Myers, 2017 WL 5185189 (Fla. Nov. 9, 2017).)

Since 2011, certain statutory obligations must be satisfied before someone can file a medical negligence suit in Florida. These requirements include: conducting a presuit investigation into whether there are reasonable grounds to believe that negligence occurred; giving notice of intent to each prospective defendant to initiate litigation 90 days before filing suit; and providing certain disclosures, including a list of the potential plaintiff’s treating health care providers for the alleged negligent act, as well as all health care providers for a period of up to two years before the alleged negligent act. The presuit notice requirements also include authorization to release protected health information that is potentially relevant to the claim.

In 2013, the law was amended to allow defendants to conduct secret, ex parte interviews with a plaintiff’s treating physician. Under the statute, the potential plaintiff’s attorney has 15 days to arrange the interview once the defendant gives notice, and any subsequent requests for an interview require only 72 hours’ notice. If the plaintiff does not schedule the interview, the defendant can still proceed without notifying the plaintiff or counsel. The statute also allows the defendant to interview the treating physician without the plaintiff or his or her counsel present. The reach of the statute meant that defendants, insurers, experts, and other parties could access protected health information—potentially even information not related to the claim at issue.

Emma Weaver, who alleged that physician Stephen Myers’ treatment of her husband led to his death, challenged the 2013 amendments on the basis that they violated the right of access to the courts and the right to privacy under Florida’s constitution. The trial court asserted that a person’s privacy rights were extinguished when they died and could not be asserted by that person’s estate. The trial court also found that the ex parte provision was consistent with a prior version of the statute that was held to be constitutional. Weaver appealed, and the state appellate court affirmed. It explained that the provision “merely imposes a condition precedent to suit without abolishing or eliminating a substantive right” to access the courts. It also went a step further than the trial court on the right to privacy argument, stating that “any privacy rights that might attach to a claimant’s medical information are waived once that information is placed at issue by filing a medical malpractice claim.”

The Florida Supreme Court reversed. The court noted that Florida’s constitution provides for a “broader, more fundamental, and more highly guarded” right to privacy than the U.S. Constitution does. A right to privacy amendment was added to the state constitution in 1980, which Florida case law has upheld in the context of medical records. Here, the court expressly stated that a person’s privacy rights continue after death and in all litigation contexts, including medical malpractice actions. The court explained that “to hold otherwise would be ironic because it would afford greater privacy rights to plaintiffs who survived alleged medical malpractice while depriving plaintiffs of the same protections where the alleged medical malpractice was egregious enough to end the lives of those plaintiffs.” The court rejected the defendant’s argument that privacy rights end at death, noting that to do so would render the right to privacy meaningless and undermine its purpose during a person’s lifetime.

The court also rejected the defendant’s argument that Emma Weaver did not have standing as the representative of her husband’s estate to assert his privacy rights after death. The court reasoned that because the lower court determined that by filing a medical malpractice action, Weaver had waived the right to privacy, then she first must have had standing to waive that right. And if she had standing to waive the privacy right, then she also must have standing to assert it.

AAJ supported the work of appellate attorney Robert Peck, one of the plaintiff attorneys and who argued on behalf of the plaintiffs before the Florida Supreme Court. Peck said, “The decision is important because it removes an obstacle that was intended to and likely to deter people from bringing meritorious medical malpractice cases by exposing irrelevant personal information to their litigation opponents, while also discouraging the injured person’s doctors from cooperating in the case.” Peck noted that because Florida’s statute was viewed as a potential model for other states, “perhaps the Florida Supreme Court’s ruling will discourage the spread of this pernicious law.”

Because of the court’s firm stance on privacy rights, Peck explained, “all plaintiffs, whether injured through medical malpractice or as a result of an automobile collision, will control the disclosure of personal health information that is not material to the case.”

The ruling also protects plaintiffs’ access to the courts. To file a medical negligence action, a potential plaintiff would have had to agree to compromise his or her privacy rights by allowing defendants, opposing counsel, insurance companies, and expert witnesses access to medical information from up to two years before the negligent act occurred and potentially information that is not relevant to the claim. The court explained that by conditioning one constitutional right on the waiver of another, the amendments amounted to “coercion.”

Peck pointed out “that the court strengthened the constitutional right of access to the courts in this decision. The defendants and some courts, including the intermediate appellate court in this case, had held that the filing of a medical malpractice case was a complete waiver of privacy rights as the price of getting your case into court. The Florida Supreme Court rejected that idea because the right of access to the courts is a fundamental right that can only be overcome by a legislative showing of overpowering public necessity and no-less intrusive means of accomplishing that public interest. That test, equivalent to strict scrutiny under the federal Constitution, is highly protective of the right to have your day in court.”