Nov 30

In the social media age, it may seem as though nothing is private. A perfect stranger can readily access our personal information through simple internet searches, and massive data breaches are becoming commonplace. This pervasive “openness creep” has been apparent in Florida case law over the years. Courts have permitted litigants to discover each other’s cell phone records, non-public social media activity, wedding and vacation photos, and more. Often, courts permit this intrusive discovery without requiring any threshold showing that it is reasonably calculated to lead to the discovery of admissible evidence.

Medical Discovery in Injury Cases

The erosion of privacy has been perhaps most pronounced in the context of medical discovery. Reasoning that a plaintiff puts her medical condition at issue when she sues for physical harm, defendants have long been permitted to discover medical records and information that grossly exceed the scope of the plaintiff’s claimed harm. For example, a plaintiff claiming a shoulder injury could be compelled to reveal her podiatrist’s or oncologist’s records. Why?  The reasoning appears to be that medical records are medical records and relevant complaints could theoretically be made to any practitioner. Such reasoning has improperly shifted the burden of proof from the proponent of a discovery request to its target.

But that wave may have crested. On November 9, 2017, the Florida Supreme Court released a landmark opinion in Weaver v. Myers, Case No. SC15-1538. In Weaver, the Florida Supreme Court resuscitated the right to privacy in litigation and applied common sense to the scope of medical discovery in injury cases.

Weaver presented a question as to the constitutionality of the 2013 amendments to the medical malpractice pre-suit statutes. Generally, the pre-suit statutes impose a notice and informal discovery process as a required condition before a plaintiff may sue for medical malpractice.  During this informal discovery process, a prospective medical malpractice defendant has broad discovery rights with which a prospective plaintiff must comply. Non-compliance risks dismissal of the plaintiff’s suit.

Ex Parte to Communications with Doctors

The provisions at issue in Weaver created a process by which the prospective defendant’s lawyers could secretly communicate with the prospective plaintiff’s doctors ex parte, that is without the plaintiff’s lawyers present. Specifically, a plaintiff was obligated to sign an authorization that permitted the defendant’s representatives to secretly interview the plaintiff’s physicians without notifying the plaintiff and without including the plaintiff’s representatives. If the plaintiff’s lawyer failed to timely schedule an interview with a physician, the defendant’s lawyer could bypass the plaintiff’s lawyer and conduct an interview ex parte and without notice to the plaintiff. Even if the plaintiff’s lawyer diligently attempted to schedule an interview, if the interview was not timely scheduled, the defendant’s lawyer could elect to proceed ex parte and in secret. Under this process, the plaintiff and her lawyers may never know what the plaintiff’s own doctors had to say to the defendant.

Justice Fred Lewis, writing for the majority in Weaver, held that by enacting the 2013 amendments, “the Legislature unconstitutionally conditioned a plaintiff’s right of access to courts for redress of injuries caused by medical malpractice, whether in the wrongful death or personal injury context, on the claimant’s waiver of the constitutional right to privacy.” But Weaver did much more than strike a few sentences from the medical malpractice pre-suit statues. With respect to the proposition that a plaintiff waives her right to privacy in her medical records by placing her medical condition at issue, the Court emphatically reasserted an important qualifier:

Although a claimant may necessarily waive privacy rights to the medical information that is relevant to a claim by filing an action, this does not amount to waiver of privacy rights pertaining to all confidential health information that is not relevant to the claim.

(Emphasis in original). This qualifier reinstates the threshold requirement that information sought be relevant to the claim and suggests that a person claiming a shoulder injury can again rightfully refuse to produce her podiatrist’s records.

In Weaver, the Florida Supreme Court described a much broader right to privacy than litigants have been assumed to enjoy:

In all litigation contexts, a decedent does not retroactively lose and can maintain the constitutional right to privacy that may be invoked as a shield in all contexts, including but not limited to medical malpractice cases, against the unwanted disclosure of protected private matters, including medical information that is irrelevant to any underlying claim including but not limited to any medical malpractice claim.

This sentence, though clunky, will likely be quoted in discovery disputes for decades to come. The Court is referring specifically to the privacy rights of the deceased in litigation but also broadly describes a right to privacy that is only partially waived by bringing suit. Through this sentence—and others like it—the Florida Supreme Court makes clear that, while discovery in litigation necessarily intrudes upon private matters, the intrusion is far from absolute. A proponent of discovery still must show that intrusive discovery into private matters is reasonably calculated to lead to admissible evidence.  Faithfully applying that rubric, perhaps a person’s podiatry records are outside the scope of a lawsuit involving a shoulder injury.

The most direct and immediate consequence of the Court’s holding is that a medical malpractice plaintiff need not authorize or consent to the ex parte secret interview process and can withdraw any such consent already given. But the Court’s reasoning describes principles upon which litigants in various contexts can resist the compelled disclosure of immaterial, private information. A litigant does not leave her right to privacy at the courthouse door. Going forward, one would expect Florida’s trial and appellate courts to tread lightly when intrusive discovery into private matters is at issue.

If you have questions or want to learn more about Medical Discovery and Right to Privacy in Litigation, give our office a call to schedule an appointment with one of our personal injury or medical malpractice lawyers.