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By Scott R. McMillen & Allison McMillen

Florida Supreme Court strikes parts of §766.106 and §766.1065 that allowed ex parte interviews with treating physicians as unconstitutional. Weaver v. Myers, So.3d , 42 FLW S906, 2017 WL 5185189 (Fla. 11-9-2017). The plaintiff filed suit as personal representative of her husband’s estate after he was allegedly killed by medical malpractice. The plaintiff sought injunctive relief as well as a declaratory judgment that the 2013 amendments to §766.106 and §766.1065, purporting to allow potential defendants to conduct ex parte interviews with a patient’s treating physicians, violated the rights to privacy and access to the courts under the Florida Constitution. The trial court granted the defendant doctor’s motion to dismiss the privacy claim, holding that the decedent’s privacy rights under the Florida Constitution had terminated on his death. Even if his rights had not terminated, the trial court found, a constitutional privacy challenge may only be brought to protect against a government entity or actor, not a private citizen like the doctor.

2017 Nov-Dec Journal MED MAL

The trial court also granted the doctor’s motion for summary judgment on the access to courts issue, on the grounds that the amendments did not add an impermissible burden on the right of access to the court. The First District Court of Appeal affirmed, holding that the authorization for ex parte interviews required by the amendments is a reasonable condition precedent to filing suit, like the presuit notice requirement itself, and did not abolish or eliminate any substantive right. In regard to the decedent’s right to privacy, the First District held that any privacy rights were waived when the personal representative filed a medical malpractice suit putting the decedent’s medical condition at issue.

The Florida Supreme Court accepted discretionary jurisdiction to review the First District’s decision, and quashed it. The Court began by holding that after death, the decedent maintained an enforceable right to privacy regarding things that occurred before his death. The Court observed that “[j]ust the potential for retroactive destruction of the right to privacy robs the life of that very protection due to the chill it would cause.” According to the Court, the personal representative or administrator of the estate – and possibly any surviving spouse – has standing to enforce such a right. Considering the issue of waiver, the Court concluded that although plaintiffs may waive their privacy rights regarding relevant medical information by filing a medicalmalpractice suit, they do not waive their privacy rights to all medical information.

The First District had erred by holding otherwise, the Court found, “to the extent unnecessary information would be open and subject to the ex parte exploration proceedings” allowed by the amendments. Applying strict scrutiny, the Court concluded that the statutory amendments violate the constitutional right to privacy. The Court found that the asserted state interests in encouraging settlement, screening out frivolous claims, and streamlining litigation were not compelling enough to outweigh the privacy interest in irrelevant medical information.

Even if the interests were compelling, the Court found that the amendments in question, allowing “clandestine, secret ex parte interviews,” were far from the least intrusive means to accomplish them. The Court based its finding in part on the fact that the ex parte interviews fail to protect from accidental disclosure of irrelevant private information, since no one is present on the plaintiff’s behalf to ensure the defendants or their attorneys, insurance companies, or experts do not ask about anything irrelevant. The fact that treating physicians are not required to participate in the ex parte interviews is not enough protection, the Court reasoned, since doctors may not understand they can refuse to participate, or may feel pressured, especially if they share a liability insurance company with the defendants.

The Court also found that the ex parte interviews allowed by the statute do not actually facilitate settlement, because all relevant medical information is already discoverable through the less intrusive discovery procedures already in existence. The Court spent a good deal of time rebutting the arguments in Justice Canady’s dissent, in which Justices Polston and Lawson concurred. Among other things, the Court opined that the dissent failed to recognize the reality that defendants would be in a position to conduct ex parte interviews without notice to the plaintiff, since, outside of an emergency, it is almost impossible to arrange time with a doctor within 15 days or 72 hours.

The Court also rejected the dissent’s emphasis on the fact that only relevant information is permitted to be discovered during the process, finding the premise that “opposing counsel… should be the sole and exclusive arbiter in a secret, ex parte non-recorded meeting of that which is relevant” to be “deeply flawed.” Rather, the Court held, the Constitution protects against even the possibility of disclosure of such “extremely sensitive” private information, especially where, as here, the plaintiff would never even know the information had been disclosed, and the bell would already be rung in any case.

Having determined that the statutory amendments violate the constitutional right to privacy, the Court also held that they violate the right of access to the courts under the “unconstitutional conditions doctrine” recognized by the U.S. Supreme Court in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2595 (2013). Finally, the Court found that the unconstitutional portions of the statutes were severable, and struck §766.1065(3) in its entirety, as well as the last sentence of §766.106(6)(b)(5), which stated, “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.”

Florida Supreme Court holds reports from peer review conducted for hospital by outside company at attorneys’ request are discoverable under Amendment 7 (“Patients’ Right to Know”). Edwards v. Thomas, So.3d , 42 FLW S870, 2017 WL 4837631 (Fla. 10-26-2017). A patient sued a surgeon and hospital after her common bile duct was negligently severed during a laparoscopic gallbladder removal surgery. Her complaint included allegations of negligent hiring and retention by the hospital. The plaintiff served a request for production on the hospital seeking adverse medical incident reports pursuant to article x, section 25 of the Florida Constitution (often referred to as “Amendment 7,” or “Patient’s Right to Know”).

The hospital objected on several grounds, and filed privilege logs regarding certain reports from “attorney-requested, external peer review” done by an outside company for the hospital. After an in camera review, the trial court agreed that the reports were privileged, but held that Amendment 7 preempted the privilege, and ordered them to be produced. The hospital filed a petition for writ of certiorari, which the Second District Court of Appeal granted. The Second District quashed the part of the trial court’s order requiring production of the external company reports, holding that they were not “made or received in the course of business” and did not meet the definition of adverse incident reports under Amendment 7, because they were not part of the hospital’s routine peer review process.

The Florida Supreme Court accepted discretionary jurisdiction to review the Second District’s decision. The Court began its analysis by examining the history and purpose of the amendment, which it noted was passed in part based on voters’ frustration that allowing the medical profession to monitor itself in secret was like the “fox guarding the henhouse.” Looking to the language of Amendment 7 and its repeated use of the word “any,” the Court rejected the hospital’s argument that the amendment was only intended to abrogate the statutory limitations on discovery of adverse medical incidents that were in place at the time of its passage.

While the Court agreed that the amendment was clearly intended to abrogate those existing restrictions, it held that the amendment was not limited to only those, but was also meant to eliminate all discovery restrictions on “any records… relating to any adverse medical incident.” Considering the particular peer review reports at issue, the Court found that they fell within Amendment 7’s scope, because the external peer review committee that produced the reports was a “similar committee” as contemplated by the language in the amendment. The Court pointed out that it would be both illogical and contrary to the voters’ will to exclude peer review reports from Amendment 7’s purview just because they were in addition to the minimum required by law.

The Court noted that such a holding would “provide a trap door through which hospitals could totally avoid their discovery obligations by outsourcing their adverse medical incident reporting to external, voluntary risk management committees separate from those required by the Florida statutory scheme.” The Court also rejected the Second District’s conclusion that the reports were not kept in the ordinary course of business because they were created by experts retained in the anticipation of litigation.

As the Court observed, “[p]art of a Florida hospital’s day-to-day business is recording and addressing adverse medical incidents that might arise in daily operations, and responding to those incidents in a way that will not only improve the quality of care rendered, but also prepare the hospital for any potential litigation that might arise from such an incident.” Finally, the Court rejected the hospital’s claim that the reports were protected by the work product and attorney-client privileges, because there was no evidence any attorney-client communications or opinion work product were involved.

First District reverses dismissal for failure to comply with medical malpractice presuit requirements, holding incident sounded in ordinary malpractice. Vance v. Okaloosa-Walton Urology, P.A., So.3d , 42 FLW D2372, 2017 WL 5076898 (Fla. 1st DCA 11-6-2017). A patient fell at her doctor’s office after the doctor removed the step she had used to climb up on the examining table and left her to climb down on her own. The patient sued the doctor for negligence, but the trial court dismissed the case because the patient had not complied with the Chapter 766 statutory requirements for medical malpractice presuit. The First District reversed, finding that the claim did not rely on the application of the medical malpractice standard of care, and the alleged negligence was something jurors could resolve using their common experience, rather than requiring the help of an expert.

Scott R. McMillen
Mr. McMillen is the founder of McMillen Law Firm, P.A., with a principal office in Orlando. He is a former member of the Florida Bar Board of Governors, a former FJA Board member, and a past President of the Central Florida Trial Lawyers Association, the Orange County Bar Association, and the Legal Aid Society of the Orange County Bar Association. Mr. McMillen started his career as a hospital defense attorney, but has been exclusively representing medical malpractice victims throughout Florida and Georgia for over 30 years.

Allison McMillen
Ms. McMillen is proud to be a second-generation plaintiffs’ attorney, working with her father Scott McMillen to represent victims of medical malpractice. She is a Director at Large on the Board of the FJA and the Treasurer of the Central Florida Trial Lawyers Association. Ms. McMillen is also on the Editorial Board of The Florida Bar Journal and News, and a member of the Order of the Coif, the George C. Young First Central Florida American Inns of Court, and the Central Florida Association for Women Lawyers.



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