In this constitutional challenge to the 2013 amendments to sections 766.106 and 766.1065 of the Florida Statutes requiring claimants in a medical malpractice claim to disclose certain protected health information (PHI) and to consent to secret, ex parte interviews between health providers and defendant , the Florida Supreme Court held that the requirements were unconstitutional and that the right of privacy is not lost at death.
The ruling concerned a medical malpractice claim brought by a personal representative of a deceased man. Plaintiff constitutionality challenged the 2013 amendments (‘the Amendments’) to Sections 766.106 and 766.1065 of the Florida Statutes,
Procedural posture: The lower court dismissed Plaintiff’s privacy claim, concluding that an estate cannot assert any privacy rights on behalf of a decedent “because such rights under the Florida Constitution absolutely terminate upon death and essentially are retroactively destroyed.”
The appellate court concluded that “any privacy rights that might attach to a claimant’s medical information are waived once that information is placed at issue by filing a medical malpractice claim.”
Decision: The Florida Supreme recognizes that the US Constitution, as interpreted by the Supreme Court, recognizes a pervasive right to privacy, there is no need to rely on the US Constitution because “the right to privacy in the Florida Constitution is broader, more fundamental, and more highly guarded than than any federal counterpart” and that “[a]rticle I, section 23, was intentionally phrased in strong terms.”
SECTION 23. Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.
The Florida Supreme Court concluded that
The facts demonstrate that the statutes challenged here would require… [Plaintiff] to forfeit the constitutional right to privacy and expose her late husband’s medical and other information … up to two years prior to the alleged act of medical negligence, regardless of its relevance to her claim to prying lawyers, insurance companies, experts, and doctors to probe, as a condition to filing a wrongful death action.
In conclusion, the Constitutional right to privacy “attaches during the life of a citizen and is not retroactively destroyed by death” and the Constitution grants protection by allowing the filing of a medical negligence action without requiring disclosure of irrelevant, protected medical history and other private information.
The court consequently struck certain unconstitutional language from mentioned Florida Statutes.
Emma Gayle Weaver, etc. v. Stephen C. Myers, M.D., et al. is available at http://caselaw.findlaw.com….
Originally published on Technethcis on January 2018