Published January 2018
By Ted Babbit

In Weaver v Myers, 42 Fla. L. Weekly S906 (Fla. Nov. 9, 2017), the Florida Supreme Court was faced with a constitutional challenge to the 2013 Amendments to Fla. Stat. 766.106 and 766.1065.  Those statutes authorize secret ex parte interviews as part of the informal discovery process of the presuit screening portion of the medical malpractice law.  The questioned statutes provide that a prospective defendant in a malpractice case may interview the claimant’s treating health care providers in secret without the presence of the plaintiff or the plaintiff’s attorney and that such interviews can occur multiple times and include a broad variety of individuals including the defendants themselves, their attorneys, expert witnesses hired by those attorneys to defend the physician or hospital and the staff of those attorneys.  The questioned statutes faced a constitutional challenge on the basis of right of access to courts and the right to privacy under the Florida Constitution.

The trial court granted the defendants’ motions to dismiss on both the privacy and right to access questions.  The trial court held that an estate cannot assert privacy rights on behalf of a decedent because those rights die with the decedent and further held that the secret ex parte interviews did not represent a material change in malpractice law to render the statutes impermissible burdens on access to court.

On appeal the First District Court of Appeals affirmed in Weaver v Myers, 170 So. 3d 873 (Fla. 1st DCA 2015).  The First District held that these statutes merely imposed a condition precedent to suit without abolishing the substantive right to bring suit and thus upheld the statutes in the face of the constitutional challenges.

The Supreme Court referred to the Florida Constitution Art. I, § 23 which explicitly states

Every natural person has the right to be let alone

and free from governmental intrusion into the

person’s private life except as otherwise provided


The Supreme Court cited State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002) for the proposition that

A patient’s medical records enjoy a confidential

status by virtue of the right of privacy contained

in the Florida Constitution.

The Supreme Court relied upon Antico v. Sindt Trucking, Inc., 148 So. 3d 163, 164 (Fla. 1st DCA 2014) with reference to the question of whether death erases a right to privacy.  At 909 the Court held

Thus, we now make explicit what the decision

below and Antico necessarily implied – 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 Supreme Court points out that absolutely nothing in the statute explains why the current adversarial procedure providing for full discovery in medical malpractice and wrongful death actions utilizing standard discovery procedures with notice and participation to all parties does not adequately secure access to relevant information “without trampling on the constitutional and private rights of a Florida citizen plaintiff” at 914.

It was obvious to the Supreme Court that the statutes in question require plaintiffs to forfeit their constitutional rights to privacy.

The facts demonstrate that the statutes

challenged here would require Weaver 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.  Moreover, the mandatory authorization

and secret, ex parte interview provisions

empower these individuals and entities to

actively engage nonparties in unsupervised

interviews without the presence of the

claimant, the claimant’s representative, or

the claimant’s attorneys, potentially leaving

exposure of irrelevant and constitutionally

protected private information otherwise

undiscoverable, and nearly impossible to


Based on what appears to be an obviously unnecessary intrusion and one sided elimination of the plaintiffs’ rights, the Court concludes at 915:

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 court 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 section 766.106 and

766.1065 of the Florida Statutes which

authorized secret, ex parte interviews.



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