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lorida Supreme Court strikes parts of §766.106 and §766.1065 that allowed ex parte interviews with treating physicians as unconstitutional. Weaver v. Myers, So.3d , 42 FLW S906, 2017 WL 5185189 (Fla. 11-9-2017). The plaintiff filed suit as personal representative of her husband’s estate after he was allegedly killed by medical malpractice. The plaintiff sought injunctive relief as well as a declaratory judgment that the 2013 amendments to §766.106 and §766.1065, purporting to allow potential defendants to conduct ex parte interviews with a patient’s treating physicians, violated the rights to privacy and access to the courts under the Florida Constitution. The trial court granted the defendant doctor’s motion to dismiss the privacy claim, holding that the decedent’s privacy rights under the Florida Constitution had terminated on his death. Even if his rights had not terminated, the trial court found, a constitutional privacy challenge may only be brought to protect against a government entity or actor, not a private citizen like the doctor. The trial court also granted the doctor’s motion for summary judgment on the access to courts issue, on the grounds that the amendments did not add an impermissible burden on the right of access to the court. The First District Court of Appeal affirmed, holding that the authorization for ex parte interviews required by the amendments is a reasonable condition precedent to filing suit, like the presuit notice requirement itself, and did not abolish or eliminate any substantive right. In regard to the decedent’s right to privacy, the First District held that any privacy rights were waived when the personal representative filed a medical malpractice suit putting the decedent’s medical condition at issue. The Florida Supreme Court accepted discretionary jurisdiction to review the First District’s decision, and quashed it. The Court began by holding that after death, the decedent maintained an enforceable right to privacy regarding things that occurred before his death. The Court observed that “[j]ust the potential for retroactive destruction of the right to privacy robs the life of that very protection due to the chill it would cause.” According to the Court, the personal representative or administrator of the estate – and possibly any surviving spouse – has standing to enforce such a right. Considering the issue of waiver, the Court concluded that although plaintiffs may waive their privacy rights regarding relevant medical information by filing a medical
by Scott R. McMillen & Allison McMillen
malpractice suit, they do not waive their privacy rights to all medical information. The First District had erred by holding otherwise, the Court found, “to the extent unnecessary information would be open and subject to the ex parte exploration proceedings” allowed by the amendments. Applying strict scrutiny, the Court concluded that the statutory amendments violate the constitutional right to privacy. The Court found that the asserted state interests in encouraging settlement, screening out frivolous claims, and streamlining litigation were not compelling enough to outweigh the privacy interest in irrelevant medical information. Even if the interests were compelling, the Court found that the amendments in question, allowing “clandestine, secret ex parte interviews,” were far from the least intrusive means to accomplish them. The Court based its finding in part on the fact that the ex parte interviews fail to protect from accidental disclosure of irrelevant private information, since no one is present on the plaintiff’s behalf to ensure the defendants or their attorneys, insurance companies, or experts do not ask about anything irrelevant. The fact that treating physicians are not required to participate in the ex parte interviews is not enough protection, the Court reasoned, since doctors may not understand they can refuse to participate, or may feel pressured, especially if they share a liability insurance company with the defendants. The Court also found that the ex parte interviews allowed by the statute do not actually facilitate settlement, because all relevant medical information is already discoverable through the less intrusive discovery procedures already in existence. The Court spent a good deal of time rebutting the arguments in Justice Canady’s dissent, in which Justices Polston and Lawson concurred. Among other things, the Court opined that the dissent failed to recognize the reality that defendants would be in a position to conduct ex parte interviews without notice to the plaintiff, since, outside of an emergency, it is almost impossible to arrange time with a doctor within 15 days or 72 hours. The Court also rejected the dissent’s emphasis on the fact that only relevant information is permitted to be discovered during the process, finding the premise that “opposing counsel… should be the sole and exclusive arbiter in a secret, ex parte non-recorded meeting of that which is relevant” to be “deeply flawed.” Rather, the Court held, the Constitution protects against even the possibility of disclosure of such “extremely sensitive” private
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