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Supreme Court Questions Medical Malpractice Law

Florida Supreme Court
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Florida Supreme Court justices appeared skeptical Thursday about the constitutionality of a 2013 medical-malpractice law that critics argue could lead to violations of patient privacy rights.
Five justices asked critical questions about the law, which is part of years of battles between groups such as doctors and plaintiffs' attorneys about the state's malpractice system. The 1st District Court of Appeal upheld the law last year.

The law allows what are known as "ex parte communications" as physicians' defense attorneys gather information in medical-malpractice disputes. The communications would involve defense attorneys talking with other doctors who have treated the patients involved in the disputes. Those doctors may have treated the patients for issues unrelated to the malpractice allegations --- and the patients' attorneys would not be present for the conversations.

Critics argue, in part, that the law could dissuade people from pursuing medical-malpractice cases because of concerns that private medical information would be disclosed during conversations between their doctors and defense attorneys. During Thursday's hearing, Justice Barbara Pariente suggested that the law could have a "chilling" effect on malpractice cases.

"Your medical information is one of the most private of what you possess as a citizen, what you talk to your doctor about, your treating doctors, and it could go far from just your medical condition," Pariente said at another point in the hearing.

The challenge to the law was filed in 2013 in Escambia County. The plaintiff in the case, Emma Gayle Weaver, contemplated filing a medical-malpractice lawsuit against physician Stephen Myers but was concerned about the constitutionality of the ex-parte change, according to court documents. Weaver was the wife of the late Thomas E. Weaver, whose care was at issue in the malpractice allegations.

Erik Bartenhagen, an attorney representing Myers, told the Supreme Court that other states have similar laws and that ex parte communications are aimed at helping resolve malpractice cases.

"The purpose of it is to have a full and free exchange of all information relating to a claim prior to entering the courthouse doors in order to weed out frivolous cases and settle meritorious cases," Bartenhagen said.

Robert Peck, an attorney representing Weaver, raised a series of constitutional objections to the law, including arguing that it violates privacy rights in the Florida Constitution. Also, he contended that the Legislature's passage of the law violated the separation of powers because the Supreme Court has the constitutional authority to decide issues such as whether to allow ex parte communications.