Tiffany A. Roddenberry is an Associate in our Tallahasse office.
Jerome W. Hoffman is a Partner in our Jacksonville office.
In Weaver v. Myers, 229 So. 3d 1118 (Fla. 2017), the court, in a 4-3 decision, ruled that 2013 statutory amendments authorizing the conduct of informal, ex parte interviews with a medical malpractice claimant's treating physician unconstitutionally infringe rights of privacy and access to courts. The Florida Supreme Court first made clear that Weaver's late husband's privacy right survived his death and could be raised by his wife in these proceedings, then ruled that the amendments unconstitutionally require claimants to waive their right to privacy as to both relevant and irrelevant medical information. The court considered the legislature's reasons for the amendments; i.e., to encourage settlement by providing equal access to relevant information, to screen out frivolous claims and to streamline medical malpractice litigation not "sufficiently compelling" to outweigh patient privacy rights. Even if the rights were compelling, the court determined that authorizing "clandestine, ex parte secret interviews is far from the least intrusive means to accomplish those stated goals." The court also held that the amendments violated the constitutional right of access to courts because they coerced claimants into foregoing their fundamental right to privacy in order to exercise their fundamental right to access to courts. The dissent argued that the majority ignored that the 2013 amendments require only the disclosure of relevant medical information and that well-established law recognizes that a claimant waives the right to privacy with respect to relevant medical information by filing a medical malpractice suit. The dissent added that the legislature is within its right to carve out a limited, Health Insurance Portability and Accountability Act (HIPAA)-compliant exception to a legislatively created physician/patient confidentiality right in order to place plaintiffs and defendants on a level playing field with respect to access to treating physicians.
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