Justice R. Fred Lewis.

Photo: Phil Sears

The Florida Supreme Court on Thursday struck down parts of the state’s medical malpractice law in a 4-3 decision finding provisions violated patients’ constitutional rights to privacy and access to courts.

The stricken lines of the 2013 law required people preparing to file a medical negligence lawsuit to sign a waiver allowing potential defendants to interview a claimants’ health care providers about protected health information. The interviews could take place in secret, without the claimants or their attorneys.

When Emma Weaver challenged the amendments on behalf of her late husband, his doctor argued privacy rights don’t extend to the dead. The First District Court of Appeal upheld the constitutionality of the ex parte interview requirement. But a 50-page opinion with Justice R. Fred Lewis writing for the majority reversed that decision.

“Death does not retroactively abolish the constitutional protections for privacy that existed at the moment of death,” Lewis wrote, with Chief Justice Jorge Labarga and Justices Barbara Pariente and Peggy Quince concurring. “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.”

The majority also found the Legislature “unconstitutionally conditioned a plaintiff’s right of access to courts for redress of injuries caused by medical malpractice” whether the injury killed them or not.

The dissent from Justices Charles Canady, C. Alan Lawson and Ricky Polston clocked in at 31 pages, calling the majority opinion “unwarranted interference with the Legislature’s authority.”

“Medical malpractice claimants have no reasonable expectation of privacy in medical information that is relevant to the alleged malpractice — and that is the only information authorized to be discussed under the ex parte amendments,” Canady wrote.

Pensacola attorney Virginia Buchanan of Levin Papantonio, who represented Weaver, said the  decision makes a difference for every medical malpractice victim in Florida. The closed-door interviews unfairly excluded patients from discussions of their own health, she said.

“The goal was to ensure open and free access to information to facilitate settlement, and I’m not sure how that got so misguided,” Buchanan said. “Because I certainly have not seen anything like that in my experience with the use of these authorizations. I have not seen that there’s been a freer, franker discussion to facilitate settlement. Instead, I think what’s happened is the doctor-patient relationships that are so important have been compromised.”

Opposing counsel Mark Hicks of Hicks, Porter, Ebenfeld & Stein in Miami did not respond to a request for comment by deadline.

Medical malpractice plaintiffs lawyer Bob Kelley of Kelley/Uustal in Fort Lauderdale, who was not involved with the case, cheered the court’s decision. He said the issue has come up rarely in his firm’s cases as defense attorney didn’t always taken advantage of the ex parte interview statute.

“I think a lot of the defense lawyers in town were uncomfortable with the whole concept, and I think they were waiting to get some guidance from the Florida Supreme Court before they did anything,” he said. “Before 2013, it would have been unheard of to do that, to have an ex parte interview with someone’s treating doctors.”

Kelley said he was especially impressed by the majority’s acknowledgment of the idea that Florida’s pre-suit process does not achieve its stated purpose of resolving medical malpractice disputes before they go to court.

State law requires potential claimants to provide information to defendants before filing a lawsuit, including medical records and a list of health care providers.

“The supposed facilitation of settlement is not a reality for either party in medical malpractice litigation,” Lewis wrote. “A secret ex parte interview with a treating health care provider does not lead to the discovery of medical information that would not otherwise be discoverable, such that it facilitates settlement.”

That’s the first time Kelley has seen the Supreme Court bash the pre-suit process, and he looks forward to seeing whether more change is on the horizon.

“That is something we’ve had a lot of experience with — all of the lawyers in Florida have,” Kelley said. “The pre-suit process is a waste of time. It does not facilitate settlement. All it does is cause delay.”

Florida’s medical malpractice law has been a sore point between the Legislature and Florida Supreme Court since 2003 when an overhaul placed caps on damages. The caps were struck down by the court in June as unconstitutional.