Florida Appellate Court Upholds Defendants’ Ex Parte Communications With Medical Malpractice Plaintiffs’ Health Care Providers

162017_132140396847214_292624_nIn its opinion filed on July 21, 2015, the District Court of Appeal First District, State of Florida (“Appellate Court”) upheld certain 2013 amendments to the medical malpractice presuit notice sections of the Florida Statutes (Sections 766.106 and 766.1065) that allow for presuit ex parte interviews between potential medical malpractice defendants and the potential claimant’s treating health care providers, and require the potential claimant to sign a written waiver of federal privacy protection concerning relevant medical information prior to instigating a medical malpractice lawsuit.

Florida’s medical malpractice presuit notice statutes require a claimant to provide a potential defendant with notice prior to filing suit and implement a 90-day tolling period after service of the notice in order for the parties to investigate the claim presuit. § 766.106(3), Fla. Stat. (2013). Prior to the 2013 amendments, five methods of informal discovery were available to the parties when conducting this presuit informal investigation, including the taking of unsworn statements. § 766.106(6)(b)(1)-(5), Fla. Stat. (2012). The 2013 amendments added a new method of informal discovery for prospective defendants: interviews of treating health care providers. Ch. 2013-108 § 3, Laws of Fla. (codified at § 766.106(b)(5), Fla. Stat. (2013)); Ch. 2013-108 § 4, Laws of Fla. (codified at § 766.1065(3), Fla. Stat. (2013)).

The interviews are to be “consistent with the authorization for release of protected health information,” which must be signed by the claimant prior to the initiation of the medical malpractice lawsuit. § 766.106(2)(a), Fla. Stat. (2013). The authorization itself explicitly provides permission for potential medical malpractice defendants to conduct ex parte interviews with the claimant’s health care providers. § 766.1065(3)(E), Fla. Stat. Nonetheless, the statute does not require the claimant’s treating health care providers to submit to a request for an interview. § 766.106(6)(b)(5), Fla. Stat.

The medical malpractice claimant may revoke the authorization for release of protected health information; however, if the claimant does so, the presuit notice that was served with the authorization “is deemed retroactively void from the date of issuance, and any tolling effect that the presuit notice may have had on any applicable statute-of-limitations period is retroactively rendered void.” § 766.1065(3)(G), Fla. Stat. Thus, since the 2013 amendments, a Florida medical malpractice claimant cannot institute a medical malpractice lawsuit without authorizing ex parte interviews between the claimant’s health care providers and the potential defendants. § 766.1065(3), Fla. Stat.

The plaintiff in the Florida medical malpractice case decided by the Appellate Court challenged the 2013 amendments on federal preemption and on constitutional grounds, arguing that the amendments violated the separation of powers doctrine, violated the constitutional limitation on special legislation, impermissibly burdened the constitutional guarantee of free access to the courts, violated the decedent’s constitutional right to privacy, and were preempted by the Health Insurance Portability Accountability Act of 1996 (“HIPAA”).

The Appellate Court held that the informal discovery methods outlined in the medical malpractice presuit statute, like the presuit notice requirement itself, are integral to promoting “the settlement of meritorious claims at an early stage without the necessity of a full adversarial proceeding” and, therefore, cannot be divorced from the other substantive aspects of the statute; the amendments are not procedural but rather are integral to the substantive presuit notice statute.

The Appellate Court further determined that the 2013 amendments to the medical malpractice presuit notice statute do not intrude upon the Florida Supreme Court’s procedural rule-making power because they are integral to other substantive portions of the statute, and they do not conflict with rule 1.650; that the statutes do not amount to an impermissible special law, but rather amount to a general law that properly applies to an open class of claimants and potential defendants (a special law is one relating to, or designed to operate upon, particular persons or things, or one that purports to operate upon classified persons or things when classification is not permissible or the classification adopted is illegal); that treating medical malpractice plaintiffs and medical malpractice defendants differently than other tort claimants and defendants is justified by the purpose of protecting the public health by ensuring the availability of adequate medical care (Sections 766.106 and 766.1065 were supposedly enacted by the Florida Legislature to combat the financial crisis in the medical liability insurance industry by encouraging early settlement and negotiation of claims; informal pretrial discovery, including the ex parte interview method, allows the parties to collect the information necessary for settlement discussions prior to trial); that a statute that merely imposes conditions to the right to sue must be upheld as long as it does not impose a hurdle that is either impossible to surmount, or so significantly difficult that it is the effective equivalent of a bar to suit (a statute which merely imposes a condition precedent to suit without abolishing or eliminating a substantive right must be upheld in the face of a constitutional challenge unless the statute creates a significantly difficult impediment to right of access; the presuit notice requirement itself is a reasonable condition precedent to filing suit and, thus, does not violate the plaintiff’s right to access the courts); and, “It is well-established in Florida and across the country 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 Appellate Court stated in a footnote, “We also note information not relevant to the potential lawsuit is not discoverable during the informal discovery process.”

Some Of Our Concerns:

However, how would a potential medical malpractice claimant and/or the claimant’s attorney know if “not relevant information” is sought, disclosed, or discussed if the communications between the medical malpractice claimant’s various health care providers and the potential medical malpractice defendants and their attorneys is secret?

What purpose does ex parte (secret) communications serve except to foster improper mischief? Wouldn’t the public interest be better served if the claimant and/or his attorney is present for the communications between a medical malpractice claimant’s health care providers and the potential medical malpractice defendants, to insure that the discussion and disclosure of sensitive health information is proper?

When newly enacted laws promote and protect secrets among a special class of citizens, then such laws are not only suspect but they are unfair, one-sided, and contrary to the fundamental purpose of government: to protect and serve all of its citizens. An important purpose of our courts is to protect everyone from the over-reach and unnecessary intrusion in our lives by the other branches of government. We believe that the Appellate Court’s affirmation of Florida’s 2013 amendments to the presuit medical malpractice notice requirements is in derogation of the courts’ duty to its citizens to quash improper laws.

Source Weaver v. Myers, M.D., et al., Case No. 1D14-3178.

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This entry was posted on Friday, July 24th, 2015 at 5:36 am. Both comments and pings are currently closed.

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