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Weaver v. Myers

Supreme Court of Florida

November 9, 2017

EMMA GAYLE WEAVER, etc., Petitioner,
v.
STEPHEN C. MYERS, M.D., et al., Respondents.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

         Application for Review of the Decision of the District Court of Appeal - Statutory Validity First District - Case No. 1D14-3178 (Escambia County)

          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

          Mark Hicks and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, Florida, for Respondent

          Philip M. Burlington and Adam J. Richardson of Burlington & Rockenbach, P.A., West Palm Beach, Florida, for Amicus Curiae Florida Justice Association

          Pamela Jo Bondi, Attorney General, and Jordan E. Pratt, Deputy Solicitor General, Office of the Attorney General, Tallahassee, Florida, for Amicus Curiae State of Florida

          Andrew 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

          Mark 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

          LEWIS, J.

         This 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.[1] 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 that jurisdiction.

         STATUTORY BACKGROUND

         Since 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).

         Following 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.

         In 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 others. Id.

         As part 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.

         AMENDMENTS AT ISSUE

         While 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 such interviews.

         Further, 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 present:

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 attorney.

§ 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 support staff:

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.

         The 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.

         Further, 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Faced 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.

         With 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.

         With 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.

         On 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.

         With 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.

         Therefore, the district court upheld the constitutionality of the statutes. This review follows.

         ANALYSIS

         Weaver 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).

         The 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).

         While 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.

         We have 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 Federal Constitution.

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)).

         Specifically 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).

         This 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.

         Notwithstanding 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.

         In 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)).

         Consistent 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.

         Thus, 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.[2] 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.

         But Dr. 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 ...


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