FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
for Review of the Decision of the District Court of Appeal -
Statutory Validity First District - Case No. 1D14-3178
Virginia M. Buchanan of Levin, Papantonio, Thomas, Mitchell,
Rafferty & Proctor, P.A., Pensacola, Florida; Robert S.
Peck of Center for Constitutional Litigation, P.C., Fairfax
Station, Virginia, for Petitioner
Hicks and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld
& Stein, P.A., Miami, Florida, for Respondent
M. Burlington and Adam J. Richardson of Burlington &
Rockenbach, P.A., West Palm Beach, Florida, for Amicus Curiae
Florida Justice Association
Jo Bondi, Attorney General, and Jordan E. Pratt, Deputy
Solicitor General, Office of the Attorney General,
Tallahassee, Florida, for Amicus Curiae State of Florida
S. Bolin of Beytin, McLaughlin, McLaughlin, O'Hara,
Bocchino & Bolin, P.A., Tampa, Florida, for Amici Curiae
Florida Hospital Association, The Florida Medical
Association, and The American Medical Association
K. Delegal and Tiffany A. Roddenberry of Holland & Knight
LLP, Tallahassee, Florida; and William W. Large, Esq. of
Florida Justice Reform Institute, Tallahassee, Florida, for
Amicus Curiae The Florida Justice Reform Institute
case involves a Florida constitutional challenge to the 2013
amendments to sections 766.106 and 766.1065 of the Florida
Statutes. Generally, the statutes pertain to invasive presuit
notice requirements that must be satisfied before a medical
negligence action may be filed, as well as an informal
discovery process that accompanies that presuit notice
process, and the amendments at issue here authorize secret,
ex parte interviews as part of the informal discovery
process. The First District Court of Appeal upheld the
constitutionality of these statutory amendments in Weaver
v. Myers, 170 So.3d 873, 883 (Fla. 1st DCA 2015). Weaver
then petitioned this Court for review. Because the
district court expressly declared a state statute valid, this
Court has discretionary jurisdiction to review the decision.
See art. V, § 3(b)(3), Fla. Const. We accept
2011, before filing a medical negligence action in Florida, a
claimant must satisfy statutory requirements, which include
conducting a presuit investigation process to ascertain
whether there are reasonable grounds to believe that the
defendant medical provider was negligent, and that the
negligence resulted in injury to the claimant. §
766.203(2)(a)-(b), Fla. Stat. (2016).
that investigation, a claimant must give each prospective
defendant presuit notice of intent to initiate litigation and
make certain disclosures. § 766.106(2)(a), Fla. Stat.
(2016). The notice must disclose, where available, a list of
all health care providers seen by the claimant for the
injuries complained of and all known health care providers
seen during the two-year period prior to the alleged act of
negligence. Id. Furthermore, a medical malpractice
claimant must furnish all medical records that the presuit
investigation expert relied upon in signing an affidavit
indicating a good-faith basis to believe a valid claim
exists. See id.
addition, the presuit notice must include an executed
authorization form that is provided in section 766.1065 of
the Florida Statutes. Id. That executed
authorization form is titled "Authorization for Release
of Protected Health Information." § 766.1065, Fla.
Stat. (2016). By executing the authorization form in
compliance with the statutory presuit notice requirement, the
claimant is required to authorize the release of protected
verbal and written health information that is potentially
relevant to the claim of medical negligence in the possession
of the health care providers listed in the notice
disclosures. § 766.1065(3)B.1.-2., Fla. Stat. However,
this authorization is not a blanket authorization-it excludes
health care providers who do not possess information that is
potentially relevant to the claim. § 766.1065(3)C.
Nevertheless, the claimant is required to name these
providers and provide the dates of treatments rendered by
of this presuit machinery unique to medical malpractice
claims, "the parties shall make discoverable information
available without formal discovery." §
766.106(6)(a), Fla. Stat. Under this informal discovery, a
prospective defendant may require a medical malpractice
claimant seeking redress to: (1) give an unsworn statement;
(2) produce requested documents, things, and medical records;
(3) submit to a physical or mental examination; (4) answer
written questions; and (5) authorize treating health care
providers to give unsworn statements. See §
766.106(6)(b), Fla. Stat. The statutory scheme further
provides, however, that "work product generated by the
presuit screening process is not discoverable or admissible
in any civil action for any purpose by the opposing
party." § 766.106(5), Fla. Stat. But, failure to
participate in informal discovery "is grounds for
dismissal of claims or defenses ultimately asserted."
§ 766.106(6)(a), Fla. Stat.
it retained the scheme described above, in 2013, the
Legislature added secret, ex parte interviews to the list of
informal discovery devices to which a medical malpractice
claimant seeking redress must consent:
Interviews of treating health care providers.-A prospective
defendant or his or her legal representative may interview
the claimant's treating health care providers consistent
with the authorization for release of protected health
information. This subparagraph does not require a
claimant's treating health care provider to submit to a
request for an interview. Notice of the intent to conduct an
interview shall be provided to the claimant or the
claimant's legal representative, who shall be responsible
for arranging a mutually convenient date, time, and location
for the interview within 15 days after the request is made.
For subsequent interviews, the prospective defendant or his
or her representative shall notify the claimant and his or
her legal representative at least 72 hours before the
subsequent interview. If the claimant's attorney fails to
schedule an interview, the prospective defendant or his or
her legal representative may attempt to conduct an
interview without further notice to the claimant or the
claimant's legal representative.
§ 766.106(6)(b)5., Fla. Stat. (emphasis added); Ch.
2013-108, § 3, at 5, Laws of Fla. Thus, that plain
language requires that, upon request by the prospective
defendant, the medical malpractice claimant must arrange for
an interview between his or her treating health care
providers and the prospective defendant or legal
representatives of such defendant within fifteen days of the
request. Without providing any limitation on the number of
interviews, the plain language further provides for arranging
subsequent interviews with 72-hours' notice. However, if
at any time the medical malpractice claimant's attorney
fails to schedule a requested interview, then the prospective
defendant or his lawyers may unilaterally and without notice
schedule the claimant's treating health care providers
for such an interview without any notice to the claimant
whatsoever. Nothing prevents multiple attempts at securing
the statutorily mandated authorization form was also amended
and makes clear that the prospective defendant may interview
the claimant's treating health care providers ex parte in
secret, without the claimant or the claimant's attorney
This authorization expressly allows the persons or class of
persons listed in subsections D.2.-4. above to interview the
health care providers listed in subsections B.1.-2. above,
without the presence of the Patient or the Patient's
§ 766.1065(3)E., Fla. Stat. (emphasis added); Ch.
2013-108, § 4, at 7, Laws of Fla. However, because
"[t]his authorization expressly allows the persons or
class of persons listed in subsections D.2.-4. above to
interview, " the authorization requires a medical
malpractice claimant to expose health care providers to such
clandestine, ex parte interviews not only with the
prospective defendant, but also with a broad set of parties,
including related insurers, expert witnesses, attorneys, and
2. Any liability insurer or self-insurer providing liability
insurance coverage, self-insurance, or defense to any health
care provider to whom presuit notice is given, or to any
health care provider listed in subsections B.1.-2. above,
regarding the care and treatment of the Patient.
3. Any consulting or testifying expert employed by or on
behalf of (name of health care provider to whom presuit
notice was given) and his/her/its insurer(s),
self-insurer(s), or attorney(s) regarding the matter of the
presuit notice accompanying this authorization.
4. Any attorney (including his/her staff) employed by or on
behalf of (name of health care provider to whom presuit
notice was given) or employed by or on behalf of any health
care provider(s) listed in subsections B.1.-2. above,
regarding the matter of the presuit notice accompanying this
authorization or the care and treatment of the Patient.
§ 766.1065(3)D.2.-4., Fla. Stat.
Legislature did not amend the statute without some expression
of its intent. Specifically, in 2013, the Legislature added a
third express purpose for the release of the protected health
information: "Obtaining legal advice or representation
arising out of the medical negligence claim described in the
accompanying presuit notice." § 766.1065(3)A.3.,
Fla. Stat.; Ch. 2013-108, § 4, at 6, Laws of Fla. Before
the amendments, the stated purpose of the mandatory
authorization was twofold-to facilitate the investigation and
evaluation of the claim, or to defend against any litigation
arising out of the claim. § 766.1065(3)A.1.-2., Fla.
Stat. (2012); Ch. 2013-108, § 4, at 6, Laws of Fla.
as was true before the 2013 amendments, it remains true today
that these conditions imposed by the Legislature are
nonnegotiable. Specifically, "If the authorization
required by this section is revoked, the presuit notice under
s. 766.106(2) is deemed retroactively void from the date of
issuance, and any tolling effect that the presuit notice may
have had on any applicable statute-of-limitations period is
retroactively rendered void." § 766.1065(2), Fla.
Stat. (2016); see also generally § 95.11(4)(b),
Fla. Stat. (2016) ("An action for medical malpractice
shall be commenced within 2 years from the time the incident
giving rise to the action occurred or within 2 years from the
time the incident is discovered, or should have been
discovered with the exercise of due diligence . . . .").
Thus, as the decision below correctly recognized, a claimant
now cannot institute a medical malpractice action without
authorizing ex parte interviews between the claimant's
health care providers and the potential defendant.
Weaver, 170 So.3d at 877.
AND PROCEDURAL BACKGROUND
with the expanded disclosure requirements, Petitioner Emma
Gayle Weaver (Weaver), individually and as personal
representative of the estate of her late husband Thomas
Weaver (Thomas), filed an action against Respondent Dr.
Stephen C. Myers for declaratory judgment and injunctive
relief with regard to the 2013 amendments on the date they
became effective. Weaver contended that Dr. Myers provided
care to Thomas that allegedly led to his injury and death.
Relevant here, Weaver contended that the 2013 amendments
violated the right of access to courts and the right to
privacy under the Florida Constitution.
regard to the right to privacy claim, the trial court granted
in part Dr. Myers' motion to dismiss and dismissed
Weaver's privacy claim. The trial court first concluded
that an estate cannot assert any privacy rights on behalf of
a decedent because such rights under the Florida Constitution
absolutely terminate upon death and essentially are
retroactively destroyed. The court then held that even if
Weaver could assert Thomas' privacy rights, the claim
should still be dismissed because a constitutional privacy
challenge can only be asserted to protect against a
government entity or actor even though it is obvious that a
state statute is authorizing the invasion here.
regard to the access to courts challenge, on June 24, 2014,
the trial court granted Dr. Myers' motion for summary
judgment. The trial court reasoned that the predecessor
statute to section 766.106 was held to be valid under the
applicable provision of the Florida Constitution. See
Lindberg v. Hosp. Corp. of Am., 545 So.2d 1384, 1386
(Fla. 4th DCA 1989), approved 571 So.2d 446 (Fla.
1990). The court then concluded the addition of the secret ex
parte interviews do not represent a material change
sufficient to render the statute an impermissible burden on
access to courts.
appeal, the First District affirmed. Weaver, 170
So.3d at 883. With regard to access to courts, the First
District stated that "[a] statute which merely imposes a
condition precedent to suit without abolishing or eliminating
a substantive right must be upheld in the face of a
constitutional challenge unless the statute 'create[s] a
significantly difficult impediment to . . . right of
access.' " Id. at 882 (quoting
Henderson v. Crosby, 883 So.2d 847, 854 (Fla. 1st
DCA 2004) (quoting Mitchell v. Moore, 786 So.2d 521
(Fla. 2001))). The district court determined that the signing
and serving of the mandatory authorization as part of the
presuit process does not "abolish or eliminate" any
substantive right, and concluded that "all that is
imposed is a precondition to suit, in addition to those that
are already in existence under chapter 766."
Id. It then stated:
Though [Weaver] is correct that the amendments to the
authorization for release of protected health information now
require the claimant to expressly authorize ex parte
interviews between former health care practitioners with
information relevant to the potential lawsuit and the
potential defendant, we find that like the presuit notice
requirement itself, this is a reasonable condition precedent
to filing suit, and, thus, does not violate her right to
access the courts.
Id. at 882-83.
regard to the privacy challenge, the district court, unlike
the trial court, addressed this claim on the merits and
concluded that "any privacy rights that might attach to
a claimant's medical information are waived once that
information is placed at issue by filing a medical
malpractice claim. Thus, by filing the medical malpractice
lawsuit, the decedent's medical condition is at
issue." Id. at 883 (citations omitted). The
district court further noted that prior to the 2013
amendments, potential claimants were already required to
disclose and produce relevant medical records to the defense
during the presuit process. Id. The court below did
not acknowledge or even address the concept of non-relevant
matters and privacy rights related thereto.
the district court upheld the constitutionality of the
statutes. This review follows.
contends that the Legislature's passage of certain
amendments to sections 766.106 and 766.1065 of the Florida
Statutes are unconstitutional for several reasons. First,
Weaver contends that the amendments violate the right to
privacy explicitly provided for in the Florida Constitution.
Relatedly, Weaver also contends that placing a prerequisite
condition on her action for wrongful death requiring the
release of Thomas' medical records and the facilitation
of ex parte, secret presuit interviews with Thomas'
medical providers violates the right to access to courts.
Because these issues are questions of Florida constitutional
law, our review is de novo. Caribbean Conservation Corp.
v. Fla. Fish & Wildlife Conservation
Comm'n, 838 So.2d 492, 500 (Fla. 2003).
United States Supreme Court has explained that the United
States Constitution does not mention the right to privacy,
but that it is a pervasive right touching on many aspects of
life and the right of privacy finds its roots throughout the
Bill of Rights and in the Fourteenth Amendment:
The Constitution does not explicitly mention any right of
privacy. In a line of decisions, however, going back perhaps
as far as Union Pacific R. Co. v. Botsford, 141 U.S.
250, 251 (1891), the Court has recognized that a right of
personal privacy, or a guarantee of certain areas or zones of
privacy, does exist under the Constitution. In varying
contexts, the Court or individual Justices have, indeed,
found at least the roots of that right in the First
Amendment; in the Fourth and Fifth Amendments; in the
penumbras of the Bill of Rights; in the Ninth Amendment; or
in the concept of liberty guaranteed by the first section of
the Fourteenth Amendment. These decisions make it clear that
only personal rights that can be deemed
"fundamental" or "implicit in the concept of
ordered liberty, " are included in this guarantee of
personal privacy. They also make it clear that the right has
some extension to activities relating to marriage;
procreation; contraception; family relationships; and child
rearing and education.
Roe v. Wade, 410 U.S. 113, 152-53 (1973),
holding modified by Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833 (1992) (internal citations omitted).
the federal right to privacy is pervasive and is revealed by
judicial interpretation, we need not rely on federal law but
look only to the Florida Constitution, which
explicitly provides a right to privacy:
Every natural person has the right to be let alone and free
from governmental intrusion into the person's private
life except as otherwise provided herein.
Art. I, § 23, Fla. Const. (1980). This provision was
added by Florida voters in 1980 and remains unchanged.
explained that the right to privacy in the Florida
Constitution is broader, more fundamental, and more highly
guarded than any federal counterpart:
This amendment is an independent, freestanding constitutional
provision which declares the fundamental right to privacy.
Article I, section 23, was intentionally phrased in strong
terms. The drafters of the amendment rejected the use of the
words "unreasonable" or "unwarranted"
before the phrase "governmental intrusion" in order
to make the privacy right as strong as possible. Since the
people of this state exercised their prerogative and enacted
an amendment to the Florida Constitution which expressly and
succinctly provides for a strong right of privacy not found
in the United States Constitution, it can only be concluded
that the right is much broader in scope than that of the
Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d
544, 548 (Fla. 1985); see N. Fla. Women's
Health & Counseling Servs., Inc. v. State, 866 So.2d
612, 634-35 (Fla. 2003). The right of privacy "ensures
that individuals are able 'to determine for themselves
when, how and to what extent information about them is
communicated to others.' " Shaktman v.
State, 553 So.2d 148, 150 (Fla. 1989) (quoting A.
Westin, Privacy and Freedom 7 (1967)).
relevant here, we have held in no uncertain terms that
"[a] patient's medical records enjoy a confidential
status by virtue of the right to privacy contained in the
Florida Constitution . . . ." State v. Johnson,
814 So.2d 390, 393 (Fla. 2002). We have further recognized
that "[t]he potential for invasion of privacy is
inherent in the litigation process." Rasmussen v. S.
Fla. Blood Serv., Inc., 500 So.2d 533, 535 (Fla. 1987).
would not be the first time that a Florida court has balanced
a decedent's constitutional right to privacy over
information occurring during the person's lifetime
against the right to access to that information in
litigation. In Antico v. Sindt Trucking, Inc., 148
So.3d 163, 164 (Fla. 1st DCA 2014), which also involved a
wrongful death action, the administrator of an estate raised
a constitutional privacy challenge to discovery of the
contents of the decedent's cell phone. Specifically, the
case involved a fatal automobile accident and the
wrongful-death-action defendant filed a motion for permission
to have an expert inspect the decedent's cellphone for
data from the day of the accident-data pertaining to
"use and location information, internet website access
history, email messages, and social and photo media posted
and reviewed on the day of the accident." Id.
The administrator of the decedent's estate "objected
to the cellphone inspection citing the decedent's privacy
rights under the Florida Constitution." Id. The
trial court ultimately granted the motion to examine the cell
phone, but recognized the decedent's privacy interests
and set very strict parameters for the expert's
confidential inspection. Id. at 164-65.
the strict parameters set by the trial court in
Antico, the administrator of the estate filed a
petition for writ of certiorari with the First District
asserting that the trial court's order departed from the
essential requirements of law by not granting stronger
protections. Id. at 165-66. In exercising certiorari
jurisdiction over the petition, the First District held that
the irreparable harm component of its jurisdiction in that
case was satisfied "because irreparable harm can be
presumed where a discovery order compels production of
matters implicating privacy rights." Id. Thus,
by exercising its certiorari jurisdiction, the district court
necessarily held that the decedent had an enforceable
constitutional right to privacy in the litigation context.
denying relief from the highly limited grant of discovery
over the cell phone's contents, the Antico court
noted that the trial court had adequately accounted
for the decedent's privacy right:
The record here indicates that the trial court closely
considered how to balance Respondents' discovery rights
and the decedent's privacy rights. The order
highlighted the relevance of the cellphone's data to the
Respondents' defense and it set forth strict procedures
controlling how the inspection process would proceed. . . . .
The other side of the equation-the countervailing privacy
interest involved with the discovery of data on a
cellphone-is also very important. . . . But we are
satisfied that the order adequately safeguards privacy
interests under the circumstances here where Petitioner
was given the opportunity, but advanced no alternative plan.
Id. at 166-67 (emphasis added). For emphasis, the
Antico court performed its review of the discovery
objection pursuant to the constitutional privacy right of the
decedent. Id. at 164. ("Citing the privacy
provision, article I, section 23, of the Florida
Constitution, and the rules of civil procedure, the
personal representative of Tabitha Antico's estate
(Petitioner) objects to an order entered by the trial court .
. . Petitioner objected to the cellphone inspection
citing the decedent's privacy rights under
the Florida Constitution." (emphasis added)).
with Antico, the decision below did not hold that
Thomas did not have a constitutional right to privacy in his
protected medical information. The district court
specifically rested its privacy analysis on waiver grounds:
It is well-established in Florida and across the country that
any privacy rights that might attach to a claimant's
medical information are waived once that information is
placed at issue by filing a medical malpractice claim.
See, e.g., Barker v. Barker, 909 So.2d 333,
337 (Fla. 2d DCA 2005); Andreatta v. Hunley, 714
N.E.2d 1154, 1157 (Ind.Ct.App. 1999). Thus, by filing the
medical malpractice lawsuit, the decedent's medical
condition is at issue.
Weaver, 170 So.3d at 883. At no point did the
district court hold that the decedent did not have a right to
privacy. See generally id. Indeed, to the contrary,
its waiver analysis was an implicit acknowledgement of that
privacy right, as one cannot waive a right he or she does not
have. No other basis was offered for the First District's
holding as to the privacy issue.
we now make explicit what the decision below and
Antico necessarily implied-in all litigation
contexts, a decedent does not retroactively lose and can
maintain the constitutional right to privacy that may be
invoked as a shield in all contexts, including but not
limited to medical malpractice cases, against the unwanted
disclosure of protected private matters, including medical
information that is irrelevant to any underlying claim
including but not limited to any medical malpractice
claim. Death does not retroactively abolish the
constitutional protections for privacy that existed at the
moment of death. To hold otherwise would be ironic because it
would afford greater privacy rights to plaintiffs who
survived alleged medical malpractice while depriving
plaintiffs of the same protections where the alleged medical
malpractice was egregious enough to end the lives of those
plaintiffs. This is an outcome that our Florida Constitution
could not possibly sanction. Cf. Estate of Youngblood v.
Halifax Convalescent Ctr., Ltd., 874 So.2d 596, 603-04
(Fla. 5th DCA 2004) ("Thus in a case such as this where
the suit was filed before the nursing home resident's
death, all deprivation of Chapter 400 rights, including those
resulting in the death of a resident but not exclusive of
those, should survive the death of the nursing home resident.
A contrary interpretation would encourage nursing homes to
drag out litigation until the nursing home resident dies-not
an impractical solution given the age and state of health of
most nursing home residents." (internal citation
omitted)). Thus, we reiterate that Thomas and his estate,
even after his death, maintained a constitutional right to
privacy concerning matters that occurred prior to his death,
and that privacy may be invoked as a shield to maintain the
confidence of his protected information, including but not
limited to medical information.
Myers contends that Thomas does not have a cognizable right
to privacy because his constitutional rights retroactively
totally vanished upon his death, and even if not, Weaver
lacks standing to assert his privacy rights. Specifically,
Dr. Myers ...