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Emma Gayle Weaver v. Stephen C. Myers, M.D., Case No. 1D14-3178 (1st DCA)

In Weaver, the First District affirmed the trial court’s ruling that certain 2013 amendments to the medical malpractice pre-suit section of the Florida Statutes are constitutional. Florida’s medical malpractice pre-suit notice statutes require a claimant to provide a potential defendant with notice prior to filing suit, and implement a 90 day tolling period during which the parties are to investigate the claim. In 2013, certain amendments to the statutes added an additional informal discovery tool available to parties when conducting the pre-suit informal investigation – interviews of the claimant’s treating healthcare providers. The amendments require the claimant to sign an authorization permitting the potential defendant to interview treating physicians. Therefore, a claimant now cannot institute a medical malpractice lawsuit without authorizing ex parte interviews between the claimant’s treating physicians and the potential defendant. The claimant in Weaver filed a declaratory judgment action arguing that the amendments were unconstitutional on several grounds.

The claimant initially argued that the amendments violated the separations of powers doctrine. Though the Legislature may enact substantive law, under the Florida Constitution, only the Florida Supreme Court has the authority to adopt judicial rules of practice and procedure. The claimant in Weaver argued that the amendments constituted rules of procedure that the Legislature was not permitted to enact. The First District disagreed. To determine whether a statute impermissibly encroaches on the Florida Supreme Court’s rulemaking authority, a two-step analysis applies. First, there must be a determination whether the statute is procedural or substantive; second, if the statute is deemed procedural, then a determination must be made as to whether the legislatively imposed procedure interferes with and intrudes upon the procedures and processes of the Florida Supreme Court and conflicts with the Florida Supreme Court’s own rule regulating the procedure.

The First District found that the 2013 amendments were substantive in nature. The court found that the pre-suit ex parte interviews are not formal discovery. Rather, they are informal discovery. The court noted that the informal discovery is not discoverable or admissible in any civil action for any purpose by the opposing party. The First District additionally cited prior case law finding that the pre-suit notice requirement itself is primarily substantive. The amendments permitting interviews, like the pre-suit requirements generally, promote the settlement of meritorious claims at an early stage. Therefore, the amendments, like the pre-suit requirements generally, are substantive in nature, the First District ruled. The First District also found that amendments do not impermissibly conflict with Fla. R. Civ. P. 1.650, the Florida Supreme Court’s own rule regulating the procedure. The court ruled that Rule 1.650 was meant to mirror the pre-suit notice requirement statutes, not serve as a limitation on the Legislature’s ability to adopt additional discovery methods.

The claimant next argued that the amendments to the pre-suit notice requirements statutes constitute an impermissible special law. The First District again disagreed. It ruled that the amendments were general, not special, despite operating on the basis of a classification system. First, the class subject to the law is open to others who may enter it – it is open to all citizens of the state, each of whom are potential claimants, and the class of potential defendants is constantly changing as providers begin or cease to practice medicine. Second, the First District ruled that treating medical malpractice plaintiffs and defendants differently than other tort claimants and defendants is justified by the purpose of protecting the public health by ensuring the availability of adequate medical care. The court rejected the claimant’s argument that McCall rendered a medical malpractice crisis nonexistent and required medical malpractice plaintiffs to not be treated differently from other plaintiffs. The court limited the McCall ruling to its specific facts and circumstances.

The claimant also argued that the amendments infringed upon the claimant’s right to access the courts. The First District rejected the argument, finding that the amendments merely imposed a condition precedent to suit, which did not abolish or eliminate a substantive right. The First District also rejected the claimant’s argument that the amendments violate the right to privacy, because privacy rights that might have attached to medical information were waived once that information was placed at issue by filing a medical malpractice claim. Lastly, the First District summarily rejected the claimant’s argument that the amendments were pre-empted by HIPAA.

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