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Florida Supreme Court strikes down as unconstitutional legislative amendments that permitted medical malpractice defendants to conduct ex parte interviews with plaintiffs’ treating health care providers.

January 19, 2018
Weaver v. Myers, No. SC15-1538, 2017 Fla. LEXIS 2282, (Nov. 9, 2017)

In a sharply divided 4-3 decision, the Florida Supreme Court struck in its entirety § 766.1065(3)(E) of the mandatory HIPAA authorization which a plaintiff is required to provide to a defendant during pre-suit. The section at issue permitted ex parte interviews between the defendant and the plaintiff’s treating health care providers. The court also struck the last sentence of § 766.106(6)(b)(5) that authorized defendants to interview treating health care providers if a claimant’s attorney failed to do so. The court allowed the general statutory requirement for medical malpractice plaintiffs to execute a mandatory authorization as a condition of filing suit to remain. In support of its decision, the court held that permitting ex parte “secret” interviews was a violation of the plaintiffs’ state constitutional right of privacy and right of access to courts. The decision restricts a defendant’s ability to investigate a pre-suit claim for medical malpractice in favor of a plaintiff’s privacy rights.

 

Case Law Alerts, 1st Quarter, January 2018

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