229 So.3d 1118 (Fla. 2017), SC15-1538, Weaver v. Myers

Docket Nº:SC15-1538
Citation:229 So.3d 1118, 42 Fla.L.Weekly S 906
Opinion Judge:LEWIS, J.
Party Name:Emma Gayle WEAVER, etc., Petitioner, v. Stephen C. MYERS, M.D., et al., Respondents.
Attorney: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, Fl...
Judge Panel:LABARGA, C.J., and PARIENTE, and QUINCE, JJ., concur. CANADY, J., dissents with an opinion, in which POLSTON and LAWSON, JJ., concur. POLSTON and LAWSON, JJ., concur. CANADY, J., dissenting.
Case Date:November 09, 2017
Court:Supreme Court of Florida
 
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Page 1118

229 So.3d 1118 (Fla. 2017)

42 Fla.L.Weekly S 906

Emma Gayle WEAVER, etc., Petitioner,

v.

Stephen C. MYERS, M.D., et al., Respondents.

No. SC15-1538

Supreme Court of Florida

November 9, 2017

Page 1119

[Copyrighted Material Omitted]

Page 1120

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

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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

OPINION

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.

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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 pres

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ence 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...

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