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Florida Supreme Court rules that constitutional right to privacy can be claimed by decedent's estate; strikes statute authorizing ex parte interviews with health care providers

On November 9, 2017, in Weaver v. Myers, No. SC15-1538, the Florida Supreme Court considered the constitutionality of the 2013 amendments to section 766.106 and 766.1065. The amendments authorize prospective defendants in medical negligence pre-suit proceedings to conduct secret, ex parte interviews of the claimant’s health care providers as part of the informal pre-suit discovery process. More specifically, the amendments allow a prospective defendant to notify the claimant’s attorney and demand that an interview be conducted within 15 days, with subsequent interviews required to be scheduled within 72 hours of notice. However, if at any time the 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. Nothing prevents multiple attempts at securing such interviews. Further, the statutorily mandated authorization form was also amended and makes clear that the prospective defendant may interview the claimant’s treating health care providers ex parte in secret, without the claimant or the claimant’s attorney present.

Faced with the requirements, the claimant, who is the spouse and personal representative of the deceased patient’s estate, filed an action against the prospective defendant for declaratory judgment and injunctive relief, alleging that the 2013 amendments violated her right of access to the courts and the right of privacy under the Florida Constitution. The trial court granted summary judgment for the defendant. The First DCA then upheld the constitutionality of these statutory amendments in Weaver v. Myers, 170 So. 3d 873, 883 (Fla. 1st DCA 2015). On review, the Florida Supreme Court made two important rulings. First, the Court ruled 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. Second, the Court concluded that the statutes challenged here are unconstitutional because they would require the surviving spouse to forfeit the constitutional right to privacy and expose her late husband’s medical and other information (and potentially hers) up to two years prior to the alleged act of medical negligence, regardless of its relevance to her claim to prying lawyers, insurance companies, experts, and doctors to probe, as a condition to filing a wrongful death action. The Court accordingly struck from the amended statutes the provisions allowing for ex parte secret interviews.