Another Blow to Tort Reform in Florida: Statute Allowing Defendants in Medical Malpractice Suits to Hold Ex Parte Interviews with the Aggrieved Patient’s Care Providers Declared Unconstitutional

By Alex Stein

STEIN on Medical Malpractice has recently published a survey of noteworthy court decisions in the field for 2017. This survey includes an important decision, Weaver v. Myers, 229 So.3d 1118 (Fla. 2017), that voided Florida statute allowing defendants in medical malpractice suits to hold ex parte interviews with the aggrieved patient’s care providers.

The case at bar involved a medical malpractice suit filed in connection with the patient’s allegedly wrongful death. The defendants attempted to take advantage of Florida’s pre-suit discovery statute, Fla. Stat. Ann. §§ 766.106, 766.1065. This statute authorized defense attorneys to hold secret ex parte interviews with all doctors and organizations that have ever provided treatment to the deceased patient.

The Florida Supreme Court decided that this statute violates the broad constitutional right to privacy under Fla. Const. art. 1, § 23. The Court reasoned that “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 Court also clarified 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.”

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