Legal Alert: Florida Supreme Court Strikes Down Recently Amended Medical Malpractice Pre-Suit Requirements

November 9, 2017

In a 4-3 decision, the Florida Supreme Court recently found two sections of Florida’s medical malpractice statute enacted for the benefit of prospective defendants to be unconstitutional.  

Specifically, in 2013, the Florida Legislature amended sections 766.106 and 766.1065 of the Florida Statutes to authorize prospective defendants to conduct informal, ex parte interviews with a medical malpractice claimant's treating physician as part of their pre-suit investigation. The purpose of the ex parte interviews was to better facilitate a prospective defendant’s investigation and evaluation of a claim so it could defend against any litigation arising out of the claim. 

In the case of Weaver v. Myers et al., case number SC15-1538, the Florida Supreme Court held these amendments to be unconstitutional for two reasons.  

First, the Court determined that the statutes are an unconstitutional invasion of privacy to the extent defendants are entitled to conduct ex parte interviews with the claimant’s treating physicians without the presence of the patient or her attorney. Fla. Stat. Section 766.1065(3)(5). 

Second, the Court determined that the statutes are unconstitutional to the extent the prospective defendant’s attorney could schedule an interview without notice to the claimant or his/her attorney. Fla. Stat. Section 766.106(6)(b)(5).

Overall, while the Court’s ruling may impede a prospective defendant’s ability to better evaluate and/or defend a medical malpractice action during the pre-suit period, it is consistent with Florida common and statutory law that prevents a defendant from directly communicating with a treating physician without the presence of the claimant’s attorney. Moreover, the Court’s ruling does not eliminate the claimant’s responsibility to provide complete access to his/her medical records so they can be reviewed by the prospective defendant’s experts. Consequently, while the ruling is favorable for claimants in terms of protecting their privacy rights, it does not wholly prevent prospective defendants from investigating the claim.  

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