In 2013, the Florida Legislature amended the medical malpractice presuit statute to authorize informal, ex parte interviews between a prospective defendant and a medical malpractice claimant’s treating physician. In Weaver, a medical malpractice claimant challenged the constitutionality of these amendments.
In proceedings before the Florida Supreme Court, the Institute submitted an amicus brief in support of the 2013 amendments’ constitutionality, observing that the amendments were critical to allow a prospective medical malpractice defendant to gain valuable information about the claim prior to suit. This in turn encourages the early and inexpensive resolution of meritorious medical malpractice claims. The Institute also argued that, because the Legislature created the physician-patient privilege in the first place, it is authorized to define the contours of that privilege through the medical malpractice presuit statute.
In a 4-3 decision, the Florida Supreme Court struck the 2013 amendments and held that the amendments violated the constitutional rights to privacy and access to courts. In a dissent joined by Justices Lawson and Polston, Justice Canady observed that the majority’s decision was difficult to reconcile with numerous prior decisions in which the issue of ex parte interviews of treating physicians in medical malpractice cases arose and yet the Court recognized that the underlying confidentiality right—i.e., physician/patient confidentiality—was created by the Legislature.
FJRI represented by Mark K. Delegal and Tiffany A. Roddenbury of Holland & Knight LLP, and William W. Large.