Florida Supreme Court Strikes Defendants' Ex Parte Interviews With Treating Physicians

Tiffany Roddenberry is an Associate for Holland & Knight's Tallahassee office.

Jerome Hoffman is a Partner for Holland & Knight's Jacksonville office.

HIGHLIGHTS:

The Florida Supreme Court has dealt a significant blow to Florida's medical malpractice pre-suit process, ruling that statutes authorizing the conduct of informal, ex parte interviews with a medical malpractice claimant's treating physician are unconstitutional. In 2013, the Florida Legislature expanded informal discovery tools for prospective medical malpractice defendants by essentially requiring a claimant to allow the prospective defendant to informally interview the claimant's treating physician without the claimant or his or her attorney present. In its 4-3 decision in Weaver v. Myers, the Florida Supreme Court struck the 2013 statutory amendments as violating the constitutional rights of privacy and access to courts. With its decision in Weaver v. Myers, issued on Nov. 9, 2017, the Florida Supreme Court struck a significant blow to Florida's medical malpractice pre-suit process, ruling that statutes authorizing the conduct of informal, ex parte interviews with a medical malpractice claimant's treating physician are unconstitutional.

Background

Under Florida law, prior to filing a medical malpractice lawsuit, a claimant must satisfy certain statutory pre-suit requirements. These statutes also authorize the use of certain informal discovery tools that allow prospective defendants to facilitate investigation and evaluation of the claim before suit is filed. In 2013, the Florida Legislature expanded those tools by essentially requiring a claimant to allow the prospective defendant to informally interview the claimant's treating physician without the claimant or his or her attorney present.

Emma Weaver, individually and as personal representative for her late husband's estate, filed suit against Dr. Stephen Myers, claiming Dr. Myers' medical care led to her husband's death. As part of that suit, Weaver challenged the constitutionality of the 2013 statutory amendments.

Florida Supreme Court Decision

In a 4-3 decision, the Florida Supreme Court struck the 2013 statutory amendments as violating the constitutional rights of privacy and access to courts. Writing for the majority, Justice Fred Lewis first made clear that Weaver's late husband's privacy right survived his death and could be raised by his wife in these proceedings. As to the constitutional privacy claim, the Court held...