## Facts

- The Florida Legislature amended Fla. Stat. §§ 766.106 and 766.1065 in 2013 to expand medical-malpractice presuit procedures.
- The amendments required claimants, as a condition of pursuing a medical-malpractice claim, to authorize broad disclosure of medical information.
- The amendments also authorized defense-side representatives to conduct ex parte interviews with the claimant’s treating physicians during presuit proceedings.
- Emma Gayle Weaver, as personal representative of a decedent’s estate in a medical-malpractice wrongful-death matter, challenged the amendments as violating the Florida Constitution’s rights to privacy and access to courts.
- The First District Court of Appeal upheld the statutes as constitutional and expressly declared the amendments valid.
- The Florida Supreme Court accepted discretionary review based on the district court’s express validation of a state statute.

## Issues

1. Whether the Florida Constitution’s right to privacy (art. I, § 23) protects a decedent’s medical information after death in wrongful-death medical-malpractice litigation.
2. Whether a personal representative has standing to assert the decedent’s privacy rights in that setting.
3. Whether requiring a claimant to consent to ex parte physician interviews and broad medical disclosures as a presuit condition violates the Florida constitutional rights of privacy (art. I, § 23) and access to courts (art. I, § 21).

## Decision

- The Florida Supreme Court reversed the district court and held, by a 4–3 vote, that portions of the 2013 amendments to §§ 766.106 and 766.1065 were unconstitutional.
- The Court held that Florida’s constitutional right to privacy in medical information attaches during life and is not extinguished by death for purposes of protecting irrelevant, private medical information in malpractice litigation.
- The Court held that the personal representative in a medical-malpractice wrongful-death action has standing to assert the decedent’s privacy rights.
- The Court held that conditioning access to courts for medical-malpractice claimants on consent to ex parte interviews and broad disclosure authorizations imposed an unconstitutional condition requiring waiver of a fundamental privacy right.
- The Court struck the unconstitutional statutory language authorizing ex parte interviews and related provisions.

## Legal Principles

- Florida’s constitutional right to privacy (art. I, § 23) is a fundamental right that protects medical information from compelled disclosure absent a sufficient justification that satisfies strict scrutiny.
- Privacy protections in medical information may continue after death to prevent compelled disclosure of irrelevant private medical history in litigation.
- In wrongful-death malpractice litigation, a personal representative may assert the decedent’s privacy rights concerning protected medical information.
- The Legislature may regulate presuit procedures, but it may not require waiver of a constitutional right as the price of invoking the right of access to courts (art. I, § 21).
- Ex parte presuit interviews with treating physicians, conducted without the claimant’s participation and outside ordinary supervised discovery mechanisms, create an impermissible risk of disclosure of irrelevant protected medical information when mandated as a condition to sue.

## Conclusion

The Florida Supreme Court invalidated statutory presuit malpractice provisions that required claimants to authorize ex parte interviews with treating physicians and broad medical disclosures, holding that the scheme improperly compelled waiver of constitutional privacy rights and unlawfully burdened access to courts; it also recognized post-death protection for a decedent’s medical privacy enforceable by the personal representative.


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