The Supreme Court of Florida (“Florida Supreme Court”) ruled in its 4-to-3 decision on November 9, 2017 that the amendment to Florida’s medical malpractice statute requiring plaintiffs in medical malpractice cases to authorize medical malpractice defendants’ attorneys to speak ex-parte (i.e., in secret, without the plaintiffs or their lawyers present) with their treating health care providers was an unconstitutional invasion of the plaintiffs’ privacy because the ex-parte communications could lead to the disclosure of private health information that is unrelated to the medical malpractice claims.
In 2013, the Florida Legislature amended the Florida medical malpractice statute to add secret, ex parte interviews to the list of informal discovery devices to which a medical malpractice claimant seeking redress must consent: “Interviews of treating health care providers. — A prospective defendant or his or her legal representative may interview the claimant’s treating health care providers consistent with the authorization for release of protected health information. This subparagraph does not require a claimant’s treating health care provider to submit to a request for an interview. Notice of the intent to conduct an interview shall be provided to the claimant or the claimant’s legal representative, who shall be responsible for arranging a mutually convenient date, time, and location for the interview within 15 days after the request is made. For subsequent interviews, the prospective defendant or his or her representative shall notify the claimant and his or her legal representative at least 72 hours before the subsequent interview. If the claimant’s attorney fails to schedule an interview, the prospective defendant or his or her legal representative may attempt to conduct an interview without further notice to the claimant or the claimant’s legal representative.” § 766.106(6)(b)5., Fla. Stat.; Ch. 2013-108, § 3, at 5, Laws of Fla.
The amended statute does not limit the number of interviews. Furthermore, if at any time the medical malpractice claimant’s attorney fails to schedule a requested interview, then the prospective defendant or his lawyers may unilaterally and without notice schedule the claimant’s treating health care providers for such an interview without any notice to the claimant whatsoever, and nothing prevents multiple attempts at securing such interviews.
Furthermore, the amended statute provides that the prospective medical malpractice defendant may interview the claimant’s treating health care providers ex parte in secret, without the claimant or the claimant’s attorney present: “This authorization expressly allows the persons or class of persons listed in subsections D.2.-4. above to interview the health care providers listed in subsections B.1.-2. above, without the presence of the Patient or the Patient’s attorney.” § 766.1065(3)E., Fla. Stat.; Ch. 2013-108, § 4, at 7, Laws of Fla.
The required authorization requires a medical malpractice claimant to expose health care providers to such clandestine, ex parte interviews not only with the prospective defendant, but also with a broad set of parties, including related insurers, expert witnesses, attorneys, and support staff.
The Florida Supreme Court Decision
The Florida Supreme Court stated “we now make explicit … [that] in all litigation contexts, a decedent does not retroactively lose and can maintain the constitutional right to privacy that may be invoked as a shield in all contexts, including but not limited to medical malpractice cases, against the unwanted disclosure of protected private matters, including medical information that is irrelevant to any underlying claim including but not limited to any medical malpractice claim. Death does not retroactively abolish the constitutional protections for privacy that existed at the moment of death.”
The Florida Supreme Court stated “in Florida, the right to privacy is no less fundamental than those other rights and is even more closely guarded in some respects … [t]oday we specifically address privacy, which is included among our most cherished rights such as speech, religion, to be free from searches and seizures without a warrant or permissible exception, and the right to due process. Surely, the reflex of any concerned jurist upon consideration of an invasion of fundamental rights would be to protect our citizens as required by our Bill of Rights.”
The Florida Supreme Court stated “Due to the fundamental and highly guarded nature of this right [the right to privacy], ‘any law that implicates the fundamental right of privacy, regardless of the activity, is subject to strict scrutiny and, therefore, presumptively unconstitutional.'”
The Florida Supreme Court held “the amended statutes here have gashed Florida’s constitutional right to privacy. Requiring claimants to authorize clandestine, ex parte secret interviews is far from the least intrusive means to accomplish those stated goals. The ex parte secret interview provisions of sections 766.106 and 766.1065 fail to protect Florida citizens from even accidental disclosures of confidential medical information that falls outside the scope of the claim because there would be no one present on the claimant’s behalf to ensure that the potential defendant, his insurers, his attorneys, or his experts do not ask for disclosure of information from a former treating health care provider that is totally irrelevant to the claim.”
The Florida Supreme Court further noted “a secret ex parte interview with a treating health care provider does not lead to the discovery of medical information that would not otherwise be discoverable, such that it facilitates settlement.”
The Florida Supreme Court held: “Under section 766.106(6)(b), the other informal discovery tools available are unsworn statements of the parties and treating health care providers (all with the claimant’s counsel allowed to be present), written questions, production of documents and things, and physical and mental examinations. There is nothing to indicate that these tools are deficient in the acquisition of information relevant to a potential medical malpractice claim, such that secret ex parte interviews justify the attendant risk of disclosure of irrelevant, constitutionally protected matters, medical information and otherwise, or serve a compelling interest … Therefore, the constitutional right to privacy has been violated in this case.”
The Florida Supreme Court further held: “Having determined that the statutory amendments impermissibly intruded on the fundamental and explicit constitutional right to privacy by the statutory requirements, the amendments cannot accomplish that end by conditioning the exercise of another highly guarded constitutional right on such submission in light of the constitutional prohibition. This protection from government coercion has been recognized by the United States Supreme Court in what is known as the unconstitutional conditions doctrine.”
The Florida Supreme Court held: “Noting the limited nature of our holding today and our severance principles, we make two strikes from the amended statutes. First, we strike in its entirety section 766.1065(3)E., Florida Statutes (2013), which contains the constitutionally infirm language: ‘This authorization expressly allows the persons or class of persons listed in subsections D.2.-4. above to interview the health care providers listed in subsections B.1.-2. above, without the presence of the Patient or the Patient’s attorney.’ § 766.1065(3)E., Fla. Stat. Second, we strike the last sentence from section 766.106(6)(b)5., Florida Statutes (2013), which contains the constitutionally infirm language: ‘If the claimant’s attorney fails to schedule an interview, the prospective defendant or his or her legal representative may attempt to conduct an interview without further notice to the claimant or the claimant’s legal representative.'” § 766.106(6)(b)5., Fla. Stat.
Addressing one of the arguments in the dissenting opinion, the majority opinion stated: “The dissent’s undue reference to the amendment’s use of the word “relevant” renders strict scrutiny no different than rational basis scrutiny. History has demonstrated that bar grievance procedures are totally insufficient to protect our fundamental rights of privacy during secret meetings. On the contrary, even the conduct of lawyers in public proceedings is very often beyond proper limitations. Additionally, there is nothing to limit the actions of other investigators and insurance adjusters.”
In further criticizing the dissenting opinion, the majority opinion stated: “in light of the adversarial nature and full discovery process applicable to medical malpractice and wrongful death actions, the dissent has provided no reason to overcome the fact that the standard discovery procedures with notice and participation of all parties that are employed daily without issue in thousands of cases are more than adequate to secure access to relevant information without trampling on the constitutional privacy rights of a Florida citizen plaintiff. The dissent misses the point when it suggests that a defendant would not even be interested in obtaining irrelevant medical information. Again, simply put, secret, ex parte non-recorded interviews conducted by adverse litigants, investigators or insurance adjusters are not the least intrusive means for gathering otherwise discoverable information. Further, to compel a person’s medical professionals to be placed in an environment conducive to even inadvertent disclosures of sensitive protected medical information violates the unambiguous constitutional “right to be let alone and free from governmental intrusion into the person’s private life.” Art. I, § 23, Fla. Const. Even the possibility that a person’s extremely sensitive private medical information will be exposed is the type of governmental intrusion that the Florida Constitution protects against because it is impossible to know if an inadvertent disclosure occurred when the meetings are not only ex parte and without a judge, but also secret without a record. In the case of protected medical information, the danger is uniquely and unconstitutionally great because once the bell has been rung, it cannot be unrung. It defies credibility to compare the physicians in this case to ordinary fact witnesses. Physicians, unlike ordinary fact witnesses, are governed by strict confidentiality through not only HIPPA, but also the constitutional right to privacy discussed at length today.”
The Florida Supreme Court’s majority opinion concluded: “In sum, we hold today that the right to privacy in the Florida Constitution attaches during the life of a citizen and is not retroactively destroyed by death. Here, the constitutional protection operates in the specific context of shielding irrelevant, protected medical history and other private information from the medical malpractice litigation process. Furthermore, in the wrongful death context, standing in the position of the decedent, the administrator of the decedent’s estate has standing to assert the decedent’s privacy rights. Finally, the Legislature unconstitutionally conditioned a plaintiff’s right of access to courts for redress of injuries caused by medical malpractice, whether in the wrongful death or personal injury context, on the claimant’s waiver of the constitutional right to privacy. Therefore, we strike certain unconstitutional language from the 2013 amendments to sections 766.106 and 766.1065 of the Florida Statutes which authorized secret, ex parte interviews. We quash the decision below and remand for further proceedings consistent with this opinion.”
Source Weaver v. Myers, No. SC15-1538
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