Florida High Court Nixes Secret Interviews in Malpractice Cases

(CN) – The Florida Supreme Court struck down a part of the state’s medical malpractice law that allowed secret interviews between patients’ doctors and defense attorneys to be used in malpractice cases.

The justices also codified the right to privacy for patients, even after death – a ruling that could have broad implications for other legal issues.

In the 4-3 decision issued Thursday, the state’s high court ruled that 2013 amendments to Florida’s medical malpractice statute violated patients’ right to privacy by allowing the admission of ex parte interviews, which could reveal confidential medical information not relevant to the lawsuit.

The amendments allowed these interviews with health care providers to occur with or without the patient’s attorney present.

Last week’s decision centered on a wrongful death lawsuit brought by Emma Gayle Weaver on behalf of her late husband Thomas, against Dr. Stephen C. Myers.

Weaver filed for an injunction to challenge the expanded discovery process. After the trial court and the First District Court of Appeals dismissed her claims, Weaver brought the issue to the Florida Supreme Court.

Dr. Myers and his attorneys defended the process, arguing Weaver’s late husband’s right to privacy ended with his death. They also argued the pre-suit requirements for submitting a medical malpractice claim waived the Weavers’ right to privacy.

But in a 50-page ruling, Justice R. Fred Lewis disagreed.

“Although a claimant may necessarily waive privacy rights to the medical information that is relevant to a claim by filing an action, this does not amount to waiver of privacy rights pertaining to all confidential health information that is not relevant to the claim,” Lewis wrote for the Florida Supreme Court’s majority.

Myers’ attorneys – Mark Hicks and Erik Bartenhagen of Miami-based Hicks, Porter, Ebenfeld & Stein – did not immediately respond Tuesday to a request for comment on the ruling.

Weaver’s attorney, Virginia Buchanan of Levin Papantino in Pensacola, Fla., said in a statement that the ruling is good “for justice and for malpractice plaintiffs.”

“Malpractice litigants were singled out, much as an unwanted step-child, as they were the only plaintiffs who were required to give up their important privacy rights to be able to bring a legal claim,” Buchanan said via email. “I celebrate for my client, as well as for all patients in Florida, who can feel comfortable about pursuing their important legal rights without being required to waive privacy rights first.”

Florida lawmakers passed the 2013 amendments to encourage settlements between patients and accused doctors and avoid drawn-out, expensive litigation, especially with more frivolous claims. But in their decision, the justices put the privacy of patients above those interests.

“Moreover, even if those concerns were compelling, rather than address them with a steady hand and surgical precision such that the least intrusive means could be implemented, the amended statutes here have gashed Florida’s constitutional right to privacy,” Lewis wrote.

Lewis was joined in the majority by Justices Jorge Labarga, Barbara J. Pariente and Peggy A. Quince.

The more conservative wing of the Florida Supreme Court — Justices Charles T. Canady, Ricky Polson and C. Alan Lawson – dissented.

“Medical malpractice claimants have no reasonable expectation of privacy in medical information that is relevant to the alleged malpractice – and that is the only information authorized to be discussed under the ex parte amendments,” Justice Canady wrote. “Consequently, the legislature did not overstep its bounds in 2013 by authorizing ex parte interviews of non-party treating physicians as part of the pre-suit, informal discovery process related to medical malpractice actions, given that the interviews are optional on the part of the treating physician and are limited by a relevance standard.”

The majority dismissed that argument by noting the patient or their attorney does not have to be present for the interviews, but other parties like insurers are allowed in on the meetings.

And while doctors can refuse the interviews, the justices in the majority noted that health care providers may not understand their rights and still feel pressure to reveal patient information not relevant to the malpractice suit.

“Even the possibility that a person’s extremely sensitive private medical information will be exposed is the type of governmental intrusion that the Florida Constitution protects against, because it is impossible to know if an inadvertent disclosure occurred when the meetings are not only ex parte and without a judge, but also secret without a record,” Justice Lewis wrote. “In the case of protected medical information, the danger is uniquely and unconstitutionally great because once the bell has been rung, it cannot be unrung.”

Furthermore, the majority said secret ex parte interviews do not lead to any special information that could not be revealed by existing discovery laws.

Thursday’s decision is the latest blow to Florida’s medical malpractice law. Over the last year, the more liberal members of the Florida Supreme Court have attacked parts of the statute as unconstitutional and harmful to patients.

In February, the justices overturned an earlier appellate decision that allowed hospitals to refuse requests by families to provide certain patient records in medical malpractice suits.

Four months later, the Florida Supreme Court rejected caps on pain-and-suffering damages in medical malpractice cases, and an August decision by the court expanded the medical malpractice law to include suicides.

But three of the high court’s justices face mandatory retirement in 2019. Depending on the philosophy of Florida’s next governor, who will appoint their replacements, the state’s malpractice laws could change yet again.

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