Emma Gayle Weaver, etc. v. Stephen C. Myers, M.D.
229 So. 3d 1118
| Fla. | 2017Background
- In 2013 the Florida Legislature amended Fla. Stat. §§ 766.106 and 766.1065 to add presuit "informal discovery" provisions allowing defendants (and insurers, experts, attorneys, staff) to conduct ex parte, non‑recorded interviews of a claimant’s treating health‑care providers if the claimant signs a mandatory authorization included with presuit notice. The authorization covers protected health information "potentially relevant" to the claim.
- The amendments require the claimant (or claimant’s counsel) to arrange an interview within 15 days of request and allow follow‑up interviews on 72 hours’ notice; if counsel fails to schedule, the statute permits the prospective defendant to attempt interviews without further notice.
- Petitioner Emma Weaver (personal representative of decedent Thomas Weaver) sued for declaratory and injunctive relief, arguing the 2013 amendments violate the Florida Constitution’s rights to privacy (Art. I, § 23) and access to courts (Art. I, § 21). The trial court granted summary judgment for defendant; the First DCA affirmed. This Court accepted review.
- The majority holds (1) a decedent retains a Florida constitutional privacy interest in pre‑death medical information that can be asserted by the personal representative, (2) the 2013 ex parte interview provisions are not the least intrusive means and impermissibly invade that privacy, and (3) conditioning access to the courts on surrendering that privacy violates Kluger/mitigating access‑to‑courts doctrine; it strikes the ex parte authorization language and the no‑notice scheduling sentence.
- The dissent would uphold the amendments: it emphasizes waiver of privacy for medical information placed at issue in malpractice litigation, statutory limits to ‘‘potentially relevant’’ information, legislative authority to adjust presuit procedures, and precedent recognizing ex parte treating‑physician interviews in other contexts (e.g., workers’ compensation).
Issues
| Issue | Plaintiff's Argument (Weaver) | Defendant's Argument (Myers) | Held |
|---|---|---|---|
| Whether a decedent retains a Florida constitutional right to privacy in medical information that can be asserted by the estate | Decedent’s privacy survives death; personal representative has standing to assert it to shield irrelevant or unnecessary medical details from ex parte disclosure | Privacy ends at death or cannot be asserted vicariously by estate; any privacy in relevant medical info is waived by filing suit | Majority: Privacy survives death and estate rep has standing; privacy protects against disclosure of irrelevant/non‑relevant medical information |
| Whether the 2013 ex parte interview and authorization provisions violate the right to privacy (Art. I, § 23) | Secret, unsupervised ex parte interviews risk inadvertent disclosure of irrelevant, constitutionally protected medical information; statute is not least intrusive; violates strict scrutiny | Interviews are optional for providers, limited to "potentially relevant" info, and are necessary to equalize access and encourage settlement; less intrusive means are unnecessary | Majority: Provisions fail strict scrutiny and are not least intrusive; unconstitutional as written (struck specific ex parte language and no‑notice sentence) |
| Whether conditioning access to courts on signing the authorization (i.e., presuit authorization as prerequisite) unconstitutionally burdens the right of access to courts (Art. I, § 21) | The statutory condition coerces waiver of a fundamental privacy right as a prerequisite to suit (unconstitutional conditions doctrine and Kluger framework) | The presuit authorization is a reasonable condition precedent; relevant privacy is waived by filing suit; no significant impediment to access | Majority: Conditioning access on surrender of privacy is a significant impediment and unconstitutional; statutory language struck accordingly |
| Standing and waiver — whether filing a malpractice/wrongful‑death claim waives all privacy and whether the personal representative can both assert and waive decedent’s privacy | Estate may not have waived privacy in irrelevant information; as personal representative, Weaver has standing to assert and defend privacy interests | Filing suit waives privacy in information "placed at issue"; statutes limit interviews to potentially relevant information so no unconstitutional waiver required | Majority: Waiver applies only to information actually placed at issue; estate has standing to assert privacy in irrelevant information |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (U.S. 1973) (explains constitutional roots of privacy doctrine)
- Winfield v. Div. of Pari‑Mutuel Wagering, 477 So.2d 544 (Fla. 1985) (Florida Constitution grants an independent, broad right to privacy subject to strict scrutiny)
- State v. Johnson, 814 So.2d 390 (Fla. 2002) (recognizes confidential status of patient medical records under Florida privacy provision)
- Acosta v. Richter, 671 So.2d 149 (Fla. 1996) (addressed ex parte interviews and statutory physician‑patient confidentiality scheme)
- Kluger v. White, 281 So.2d 1 (Fla. 1973) (Legislature may not abolish or significantly obstruct court access without reasonable alternative or overwhelming necessity)
- Mitchell v. Moore, 786 So.2d 521 (Fla. 2001) (defines ‘‘significant’’ impediment to access to courts standard)
- Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595 (U.S. 2013) (unconstitutional‑conditions doctrine prohibits coercive conditioning of constitutional rights)