Florida Supreme Court strikes down as unconstitutional legislative amendments that permitted medical malpractice defendants to conduct ex parte interviews with plaintiffs’ treating health care providers.

In a sharply divided 4-3 decision, the Florida Supreme Court struck in its entirety § 766.1065(3)(E) of the mandatory HIPAA authorization which a plaintiff is required to provide to a defendant during pre-suit. The section at issue permitted ex parte interviews between the defendant and the plaintiff’s treating health care providers. The court also struck the last sentence of § 766.106(6)(b)(5) that authorized defendants to interview treating health care providers if a claimant’s attorney failed to do so. The court allowed the general statutory requirement for medical malpractice plaintiffs to execute a mandatory authorization as a condition of filing suit to remain. In support of its decision, the court held that permitting ex parte “secret” interviews was a violation of the plaintiffs’ state constitutional right of privacy and right of access to courts. The decision restricts a defendant’s ability to investigate a pre-suit claim for medical malpractice in favor of a plaintiff’s privacy rights.

^{Case Law Alerts, 1st Quarter, January 2018}

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