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The Florida Bar Journal
July/August, 2018 Volume 92, No. 7
Weaver v. Myers: The Future of Ex Parte Communication in Florida Medical Malpractice

by Brian W. Boelens

Page 22



To help control direct and indirect costs of medical malpractice litigation, experienced by plaintiffs and defendants alike, many state and federal jurisdictions have permitted ex parte interviews of treating physicians.1 Not surprisingly, however, the rationale that informal access to key witnesses facilitates extrajudicial resolution and reduces costs to all parties is in itself controversial and the subject of much litigation.2 “Ex parte,” Latin for “from the part,” is an action that is “done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested.”3 An ex parte interview of a treating physician is, therefore, an interview, conducted solely by a plaintiff or defense attorney, outside of the presence of the opposing party or his or her counsel. Currently, the nation is split nearly 50/50 in jurisdictions allowing or disallowing these interviews with treating physicians.4

On November 9, 2017, the Florida Supreme Court determined that, absent limited circumstances, Florida would not allow ex parte interviews of treating physicians.5 Now Florida’s health lawyers, litigators, and house counsel must attempt to determine the “new normal” after nearly five years of expressly permitted ex parte interviews by counsel. This article looks at the history of ex parte communication with treating physicians under Florida law and the recent decision by the Florida Supreme Court, and postulates as to the future of communications in Florida medical malpractice with more limited ex parte communication parameters.

Ex Parte Communications in Florida
The costs of the traditional medical malpractice system in the United States exceed $55.6 billion annually.6 A 2017 collaborative, national benchmark report by the American Society for Healthcare Risk Management and Aon’s actuarial firm found Florida’s loss rate (a calculation combining average medical claim cost and annual volume of medical claims) to be the highest among all 50 states at 2.9 times the national average.7 Three decades before the release of the benchmark report, the Florida Legislature, citing a statewide health-care professional liability insurance crisis of increasing severity, enacted the Comprehensive Medical Malpractice Reform Act of 1985.8 This legislation required a medical malpractice plaintiff to engage in a presuit investigation, provide notice of intent to initiate litigation (an NOI) to prospective defendants, and engage in “meaningful presuit discovery.”9 These presuit processes were enacted in order to encourage parties to settle at an early stage without full adversarial proceedings, with the aim of reducing both litigation expenses and insurance premiums.10

Three of Florida’s presuit statutes are especially germane to the discussion of ex parte communications with treating providers: F.S. §§766.106, 766.1065, and 766.203. These sections require that before a medical negligence claim is filed, both a prospective plaintiff and defendant must investigate the alleged claim. The claimant must investigate to ensure “reasonable grounds” exist to believe medical negligence occurred.11 The prospective defendant, before responding to the NOI, must also investigate whether reasonable grounds exist to support a claim of negligence and whether the alleged negligence resulted in injury.12

This review by a prospective defendant may be satisfied through:

“1. Internal review by a duly qualified claims adjuster;

“2. Creation of a panel comprised of an attorney knowledgeable in the prosecution or defense of medical negligence actions, a health care provider trained in the same or similar medical specialty as the prospective defendant, and a duly qualified claims adjuster;

“3. A contractual agreement with a state or local professional society of health care providers, which maintains a medical review committee;

“4. Any other similar procedure which fairly and promptly evaluates the pending claim.”13

Regardless of the mechanism of review, the defendant and his or her counsel are primarily concerned with identifying and assessing the weight of evidence in support of, or tending to negate, a negligence finding. As every first-year law student knows, the elements of negligence include duty, breach, causation, and damages.14 While duty is almost never a contested issue when a provider-patient relationship exists, and breach may be established by simply reviewing the medical records and conferring with independent experts, a full understanding of causation and damages often requires discussion with the prospective plaintiff’s prior or subsequent treating providers. These communications enable a comprehensive evaluation of damages, including the patient’s current condition and any factors that mitigate or eliminate any causal connection between care provided and injuries asserted.15 In Florida, the plaintiffs’ bar has argued that an ex parte investigation violates federal and Florida privacy laws, as well as a limitation of access to the courts, when performed by a defense attorney outside the presence of the plaintiff or plaintiff’s counsel.16

States and federal courts use differing forms of regulation to either allow, limit, or totally bar ex parte communication between defense attorneys and treating physicians.17 In 2013, the Florida Legislature amended the medical malpractice presuit statutes to expressly afford prospective defendants and their counsel the ability to interview treating health-care providers.18 Now, portions of these statutory amendments have been found unconstitutional by the Florida Supreme Court in Weaver v. Myers, 229 So. 3d 1118 (Fla. 2017).

Prior to the Ex Parte Amendments — Historically, Florida did not recognize a common law or statutory privilege of confidentiality between physicians and patients; in other words, ex parte communications between treating physicians and prospective or actual plaintiffs and defendants were subject to no legal barriers.19 In 1988, the Florida Legislature amended F.S. §455.241 to include a statutory privilege for the physician-patient relationship.20 After several district courts of appeal weighed in on the relationship between the newly amended §455.241 and ex parte communications, a district split quickly emerged.21 The Florida Supreme Court recognized conflict between the districts and held that §455.241(2) did, in fact, act as a bar to ex parte communications, absent the listed, statutory exceptions: when the physician with whom communications are sought is, or reasonably expects to be, a named defendant in a medical malpractice lawsuit; by written consent of the patient; or when compelled by subpoena.22

The Statutory Amendments — In 2012, the Florida Supreme Court decided Hasan v. Garvar, 108 So. 3d 570 (Fla. 2012), a case that effectively barred ex parte meetings and communications between “nonparty treating physicians and others outside the confidential relationship.”23 In Hasan, Jennifer Schaumberg, the plaintiff’s subsequent treating oral surgeon, wished to speak with her own attorney ex parte in order to discuss nonpatient issues before a deposition.24 The Florida Supreme Court determined, however, that Dr. Schaumberg (who was a nonparty) could not speak with her counsel, even about nonpatient-specific matters, because her counsel was hired by the same insurance company as defendant Garvar’s counsel.25 A key factor in the decision to limit ex parte communications was the majority’s skepticism that a subsequent treating provider and her attorney would speak only of nonpatient matters — an idea the majority declared was “pure sophistry.”26 In the dissenting opinion, Justice Polston described the majority decision as “very odd” and averred, “I am unaware of any other circumstance where this court has prohibited someone from consulting a lawyer for legal advice.”27

In response to the Hasan court’s seeming “blanket ban on communications between a treating physician and any attorney,” the Florida Legislature proffered S.B. 1792.28 The amendments that went into effect on July 1, 2013, modified F.S. §§766.106 and 766.1065. Section 766.106 was amended to add an entirely new subsection on interviewing “treating healthcare providers”:

“A prospective defendant or his or her legal representative may interview the claimant’s treating health-care providers consistent with the authorization for release of protected health information. This subparagraph does not require a claimant’s treating health-care provider to submit to a request for an interview. Notice of the intent to conduct an interview shall be provided to the claimant or the claimant’s legal representative, who shall be responsible for arranging a mutually convenient date, time, and location for the interview within 15 days after the request is made. For subsequent interviews, the prospective defendant or his or her representative shall notify the claimant and his or her legal representative at least 72 hours before the subsequent interview. If the claimant’s attorney fails to schedule an interview, the prospective defendant or his or her legal representative may attempt to conduct an interview without further notice to the claimant or the claimant’s legal representative.”29

Similarly, §766.1065 was amended to expressly allow “obtaining legal advice or representation arising out of the medical negligence claim” to expressly nullify the holding in Hasan.30 Further, the bill amended the authorization form required as a prerequisite to filing a medical malpractice suit to include language allowing for the interviewing of health-care providers “without the presence of the [p]atient or the [p]atient’s attorney.”31

Post Statutory Amendments — The day S.B. 1792 became effective, a challenge to the ex parte authorization was filed in the U.S. District Court for the Northern District of Florida on the grounds that the amendments violated the protections afforded under the Health Insurance Portability and Accountability Act (HIPAA).32 Ultimately, the 11th Circuit Court of Appeals held that the authorization form required by F.S. §766.1065 fully complied with HIPAA and was not preempted by federal law.33 After they were unsuccessful in the federal courts, the plaintiffs’ bar then sought relief in the state courts in Weaver v. Myers.

Weaver v. Myers
Trial Court — Following the death of Thomas E. Weaver, his surviving spouse and personal representative of his estate, Emma Gayle Weaver, contemplated bringing a medical malpractice action against Mr. Weaver’s medical providers, including Stephen C. Myers and other physicians’ groups and hospitals.34 To resolve doubts about the newly enacted statutes, Mrs. Weaver first sought a declaratory judgment that these new provisions were preempted by HIPAA and that they violated the Florida Constitution.35 Both parties filed cross-motions for summary judgment, and after an evidentiary hearing, Myers’ motion for summary judgment was granted, leading Weaver to appeal to the First District Court of Appeal.36

First District Court of Appeal — At the district court, Weaver, now the appellant, continued to challenge the validity of the 2013 amendments to the medical malpractice presuit notice sections allowing for ex parte interviews.37 Weaver alleged four state constitutional challenges: that the amendments violated the separation of powers doctrine; violated the limitation on special legislation; impermissibly burdened the free access to the courts; and violated the decedent’s right to privacy.38 Weaver also alleged the amendments were preempted by HIPAA.39 The First District Court of Appeal affirmed the trial court’s determination and held that the statutory changes were valid, constitutional, and not preempted by HIPAA.40

The court reviewed both the state and federal challenges to the amendments de novo, with the framework of erring on the side of constitutionality.41 The court initially dismissed the separation of powers issues — i.e., that the amendments violated Fla. R. Civ. P. 1.650 by conflicting with the limitations on informal discovery methods and thereby allowed the legislature to enact procedural rules in violation of Fla. Const. art. II, §3.42 Using a two-step procedure to determine whether a statute “impermissibly encroache[d]” on the Florida Supreme Court’s rulemaking authority, the court found that the informal discovery process of medical malpractice cases diverged from formal discovery and was “primarily substantive.”43

Next, the court turned to the special legislation argument. Weaver claimed that the presuit amendments were special laws due to their under-inclusivity — applying singularly to claims involving medical negligence.44 The Florida Constitution prohibits the creation of laws particular or “special” to any one group of classified persons or things or to a general law that is then only applied to a specific locality.45 Weaver explained that the amendments allowing ex parte communication afforded medical negligence defendants special evidentiary privileges as “no justification exists for…enhancing the discovery rights of putative defendants…in the manner that [§§]766.106 and 766.1065 do.”46

The court found this argument unpersuasive because there are two criteria that render a law general when it operates on the basis of a classification system: The class is open, and there is a rational distinction between those in and out of the class when the purpose and subject of legislation are considered.47 The court found that the amendments met both criteria.48

Finally, the court relied on what it considered to be analogous caselaw to resolve Weaver’s final contentions: that the amendments burdened the right to access the courts; violated the right to privacy; and were preempted by HIPAA.49 The underlying amended statute containing the presuit notice and screening requirements (§766.106) had been found constitutional decades prior.50 Moreover, courts have held that a person waives the privacy rights afforded to his or her medical records under Fla. Const. art. I, §23, by filing a medical malpractice claim concerning the records at issue.51 And the 11th Circuit Court of Appeals had previously held that the presuit authorization form and presuit requirements required by Florida statutes did not violate and were not preempted by HIPAA.52

Florida Supreme Court — After the First DCA affirmed the trial court, Weaver petitioned the Florida Supreme Court. Weaver, now the petitioner, sought to invoke the Florida Supreme Court’s jurisdiction because the First DCA’s decision expressly declares a state statute valid and construed provisions of the state constitution.53 Weaver further alleged that the First District had departed from the rulings of the Florida Supreme Court, analogizing the First DCA’s holding that there was no constitutional bar to ex parte interviews to legislative enlargement of promulgated rules, prohibited under Haven Federal Savings and Loan Association v. Kirian, 579 So. 2d 730 (Fla. 1991).54 In Kirian, the Florida Supreme Court held that when it “promulgates rules relating to the practice and procedure of all courts and a statute provides a contrary practice or procedure, the statute is unconstitutional to the extent of the conflict.”55

Weaver alleged that the amendments bar access to the courts and violate the Florida Constitution’s right to privacy.56 Myers alternatively proffered that the First District Court of Appeal’s decision “constitute[d] nothing more than a straightforward and correct application…of precedent from [the Florida Supreme Court].”57 Of benefit to the respondents, the state of Florida filed an amicus brief in support of the statutory amendments.58 The state opined that access to medical information served a critical function in the presuit process by, among other things, encouraging early settlement and reducing medical and insurance costs.59 The state disagreed with the characterization of the amendments as infringing on the Supreme Court’s rulemaking authority, instead characterizing the amendments as “substantive law.”60 The state also contended that the amendments do not deny prospective plaintiffs’ access to the courts, but rather branded the amendments as “modest conditions…that add little to the presuit process…already upheld.”61

Justice Lewis, writing for the court, focused principally on Weaver’s explicit, constitutional privacy right provided by the Florida Constitution.62 The court noted that the constitutional right of the decedent “belong to the decedent’s next of kin” — here, Weaver.63 And the court clarified earlier caselaw by “mak[ing] explicit” that a decedent cannot lose this constitutional right to privacy, and even despite filing a medical malpractice claim, all medical information that is “irrelevant to any underlying claim” remains protected.64

Addressing the amici and the Florida Legislature, the court found the legislature’s intent to encourage “settlement by providing equal access to relevant information,…screening out frivolous claims, and streamlining medical malpractice litigation” to be insufficiently compelling to abrogate the constitutional right to privacy when the underlying patient health information is “not relevant to the prospective claim of malpractice.”65 The court minimized the legislature’s response to Hasan, holding the constitutional right to privacy with much greater reverence than “a limited statutory evidentiary privilege,” i.e., the attorney-client privilege.66

The court then struck F.S. §§766.1065(3)E and 766.106(6)(b)(5) under the doctrine of severability, effectively limiting ex parte communication with treating providers in Florida.67 Notably, the court did not sever §766.1065(3)(A)(3), which expressly nullified the court’s prior holding in Hasan, debatably the genesis of the 2013 amendments.

Justice Canady, writing for the dissent, fully agreed with the lower court’s ruling and further viewed the majority opinion to be an “unwarranted interference with the [l]egislature’s authority”68 The dissent found the right to privacy argument to be unpersuasive as the non-relevant health information painstakingly discussed in the majority opinion was — according to the dissent — never permitted, even under the 2013 ex parte amendments.69 Instead, the dissent viewed the amendments to be “well within [the legislature’s] bounds to carve out a limited, HIPAA-compliant exception to a legislatively created right…to place plaintiffs and defendants on a level playing field.”70

The Future of Ex Parte Communication
The Florida Supreme Court has ruled portions of the 2013 amendments to be unconstitutional. As a consequence, “good-faith” presuit investigations by medical malpractice defendants may be necessarily and fundamentally altered. The question now for attorneys is: What does this mean? How will defense attorneys now attempt to thoroughly investigate and shield their client from undue liability, and how will plaintiff attorneys attempt to protect their client’s constitutional right to privacy?

Discovery — Because the litigation process is intrinsically invasive,71 elimination of the statutory right to ex parte communications between treating physicians and attorneys will not limit the invasion of privacy into the plaintiff’s medical record. Instead of conducting ex parte interviews to gather information from treating physicians, attorneys will obtain this same information through oral discovery provided for under F.S. §766.106(6)(b) and Fla. R. Civ. P. 1.310. The only difference is it will be a much lengthier process, potentially prohibitively so, until a lawsuit has been filed.72

Under Ch. 766, a party may “require” other parties to appear in order to take an unsworn statement.73 A treating physician, however, is not a party. Previously, §766.106(6)(b)(5) allowed treating physicians to be interviewed by parties, consistent with the authorization for release of protected health information.74 Now that the Florida Supreme Court has severed this provision, a treating physician is no longer “required” to comply with §766.106. And there is no mechanism to compel an unsworn statement of a nonparty.

So to interview a treating physician for relevant information, a putative defendant must wait until they have become a named defendant. Then they may depose a treating physician through the standard formal discovery process. This, arguably, weakens the primary intent of the presuit process: meaningful presuit investigation.

Nondisclosures — A primary concern with ex parte communications was the disclosure of protected health information by nonparty providers to their own independent counsel. Yet, when a physician communicates confidential patient health information in the course of his or her employment, then this communication is not a disclosure under F.S. §456.057.75 Section 456.057(7)(a) limits the furnishing and otherwise disclosing of patient records and the underlying medical conditions absent several excepted disclosures.76 Similarly, federal law prohibits the furnishing or disclosure of protected health information absent listed exceptional disclosures.77 But employee discussions related to protected health information with their employers, within the scope of employment, are not considered “disclosures.”78 Therefore, no exception is required.79

Florida currently has the third-largest population and the third-largest number of hospitals in the nation.80 Despite this large general populace and a sizable rural cohort, Florida ranks 10th for rural health clinics, thereby concentrating health care in urban centers.81 The five largest nongovernmental health systems (measured by licensed beds) house nearly one-third of all active physicians in the state.82 Including governmental employers — i.e., the Veterans Health Administration and the State University System of Florida — seven health systems employ over 60 percent of active physicians in the state.83

Physician employment by hospitals and health systems is on the rise.84 Currently, employed physicians under the age of 45 are more likely than not to have never been in private practice.85 A 2013 survey found that 92 percent of residents would prefer salaried employment than to practice independently.86 In the southern United States, growth in hospital-owned practices increased by 98 percent between 2012 and 2015.87 The increasing complexity of regulatory schemes — e.g., Stark Laws, Anti-Kickback Statutes, and the False Claims Act — lead many physicians into health systems with access to legal teams with regulatory expertise.88

Although the Florida Supreme Court has overturned the First DCA’s holding, physicians employed by a health system may be less affected than their private practice counterparts. Often patients are seen wholly within larger health-care systems, and for those patients who see multiple specialists and their primary care provider all within the same system, those treating physicians may have different restrictions to meaningful presuit investigation than those physicians outside of the system.

The Waiver Defense — A patient’s medical records and underlying treatment are confidential by statutory expression of the right to privacy articulated in the Florida Constitution;89 however, personal constitutional rights can be waived.90 These personal waivers must be made knowingly, intelligently, and voluntarily.91 Now that the First DCA’s decision in Weaver has been reversed, hospital systems and physician practices may begin to request a waiver of this ex parte communicative privacy in the event of a malpractice suit.

Waivers of this kind are not unprecedented. In 2004, physicians’ groups and plaintiffs’ attorneys waged a constitutional amendment battle that the plaintiffs’ attorneys won handily.92 While the attorneys were able to enact several long-lasting and practice-changing amendments — namely the “Three Strikes” and “Patients’ Right to Know” — the physicians were only able to enact one: “The Medical Liability Claimant’s Compensation Amendment.”93 This amendment purported to ensure that a claimant who entered into an agreement with an attorney on a contingency basis would receive no less than 70 percent of the first $250,000, and no less than 90 percent of any award for damages in excess of $250,000; however, Florida plaintiffs’ attorneys quickly drafted a standard waiver to the amendment.94 In the same way, the Florida Supreme Court may have pushed health-care systems and practices to follow the waiver path, paved by case precedent and the Florida plaintiffs’ bar.

Conclusion
Statutorily mandated ex parte communications are characterized by opposing attorneys and courts as either a gross violation of the Florida right to privacy or as a necessary part of a presuit scheme enacted to mitigate the malpractice and insurance crises. The Florida Supreme Court has sided with the plaintiffs’ bar and the right to privacy. The 2013 amendments to the Medical Malpractice Act’s presuit procedure have been found to be partly unconstitutional, but it is unclear how that will affect the average medical defense attorney or putative defendant. Those physicians outside of large health-care organizations and their subsequent counsel may be at a disadvantage in comparison to those physicians within. The costly, lengthy, post-presuit, formal discovery process may become the principal path for a defendant physician to investigate causation and damages. Both parties understand that it is likely the medical information pertinent to the malpractice claim will be unearthed, it is now merely a question of time and with what safeguards in place.


1 Joseph Regalia & V. Andrew Cass, Navigating the Law of Defense Counsel Ex Parte Interviews of Treating Physicians, 31 J. Contemp. Health L. & Pol’y 35, 36-37 (2015).

2 See generally Haleakala v. Bd. of Land & Natural Res., 382 P.3d 195 (Haw. 2016); Elec. Power Supply Ass’n v. FERC, 391 F.3d 1255 (D.C. Cir. 2004); Jensen v. Jensen, 40 P.2d 238 (Colo. 1935); Van Cortlandt v. Underhill, 17 Johns. 405 (N.Y. 1819).

3 Black’s Law Dictionary 597 (6th ed. 1990).

4 Regalia & Cass, Navigating the Law of Defense Counsel Ex Parte Interviews of Treating Physicians, 31 J. Contemp. Health L. & Pol’y at 37.

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

6 Michelle M. Mello et al., National Costs of the Medical Liability System, 29 Health Affairs 1569 (2010).

7 Aon Risk Solutions & Am. Soc’y for Healthcare Risk Mgmt., 2017 Hospital and Physician Professional Liability Benchmark Analysis 67-68 (2017).

8 Comprehensive Medical Malpractice Reform Act of 1985, Ch. 85-175, 1985 Fla. Laws 1183 (codified at Fla. Stat. §766.106 (1985)).

9 Nelly N. Khouzam, Medical Malpractice: A Review of the Presuit Screening Provisions of the Florida Medical Malpractice Act, 20 Nova L. Rev. 453, 454-55 (1995).

10 See, e.g., Cohen v. Dauphinee, 739 So. 2d 68, 71-72 (Fla. 1999); Williams v. Campagnulo, 588 So. 2d 982, 983 (Fla. 1991); Kukral v. Mekras, 679 So. 2d 278, 281 (Fla. 1996).

11 Fla. Stat. §766.203(2) (2017).

12 Fla. Stat. §766.203(3) (2017).

13 Fla. Stat. §766.106(3)(a) (2017).

14 Black’s Law Dictionary 1056 (6th ed. 1990).

15 See, e.g., Andrew McCumber, Can We Talk? Ex Parte Communication with Treating Physicians, McCumber Daniels, available at http://www.mccumberdaniels.com/firm-news/attorney-articles-and-commentaries/can-we-talk-ex-parte-communication-with-treating-physicians.aspx; Melissa Phillips Reading & Laura Marshall Strong, Has HIPAA Really Changed the Landscape, For the Defense 30 (Oct. 2011), available at http://www.og-law.com/files/FTD-1110-ReadingStrong.pdf.

16 See discussion of Weaver v. Myers; Murphy v. Dulay, 768 F.3d 1360 (11th Cir. 2014).

17 Compare Domako v. Rowe, 475 N.W.2d 30, 34 (Mich. 1991) (finding that after a filing of medical malpractice any physician-patient privilege is waived for that action); Trans-World Invs. v. Drobny, 554 P.2d 1148, 1151 (Alaska 1976) (reaffirming that a waiver of the physician-patient privilege exists at the filing of a personal injury lawsuit); with Mull v. String, 448 So. 2d 952 (Ala. 1984); Jaap v. Dist. Ct. of the Eighth Jud. Dist., 623 P.2d 1389 (Mont. 1981).

18 Medical Malpractice-Right to Counsel-Disclosure, 2013 Fla. Sess. Law Serv. Ch. 2013-108 (S.B. 1792) (West).

19 See generally Coralluzzo v. Fass, 450 So. 2d 858, 859 (Fla. 1984) (finding there to be no common law or statutory privilege of confidentiality, but that there was a fiduciary duty between physician and patient).

20 Fla. Stat. §455.241(2) (1989).

21 Compare Franklin v. Nationwide Mutual Fire Ins. Co., 566 So. 2d 529 (Fla. 1st DCA 1990) (holding that the trial court was not authorized to compel an insured to execute an authorization for ex parte communications with treating physicians, nor did the insured waive the statutory privilege by requesting and receiving report of same physician under court order), and Manor Care of Dunedin, Inc. v. Keiser, 611 So. 2d 1305 (Fla. 2d DCA 1992), with Johnson v. Mt. Sinai Med. Ctr., Inc., 615 So. 2d 257 (Fla. 3d DCA 1993) (finding that §455.241(2) did not prohibit ex parte communication between defense counsel and a treating physician), and Castillo-Plaza v. Green, 655 So. 2d 197 (Fla. 3d DCA 1995).

22 Acosta v. Richter, 671 So. 2d 149 (Fla. 1996).

23 Hasan, 108 So. 3d at 578 (Fla. 2012).

24 Id. at 571.

25 Id. at 578.

26 Id.

27 Id. at 580 (Polston, J. dissenting).

28 Bill Analysis and Fiscal Impact Statement on S.B. 1792, Comm. on Judiciary at 4 (2013).

29 2013 Fla. Sess. Law Serv. Ch. 2013-108 (S.B. 1792) (West).

30 Id.

31 Id.

32 Murphy v. Dulay, 975 F. Supp. 2d 1200, 1202 (N.D. Fla. 2013).

33 Murphy v. Dulay, 768 F.3d 1360, 1378 (11th Cir. 2014).

34 Brief of Appellant at 2, Weaver v. Myers, No. 1D14-3178 (Fla. 1st DCA 2014).

35 Id.

36 Id. at 3.

37 Weaver v. Myers, 170 So. 3d 873, 876 (Fla. 1st DCA 2015).

38 Id. at 876.

39 Id.

40 Id. at 877.

41 Id. (citing VanBibber v. Hartford Accident & Indem. Ins. Co., 439 So. 2d 880, 883 (Fla. 1983); and Abdool v. Bondi, 141 So. 3d 529, 538 (Fla. 2014)).

42 Id. at 878 (citing Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So. 3d 73, 78 (Fla. 2012)).

43 Weaver, 170 So. 3d at 878 (using the two-step process of Massey v. David, 979 So. 2d 931, 936 (Fla. 2008)).

44 Id. at 880.

45 Fla. Const. art. III, §11; see Lawnwood Med. Ctr., Inc. v. Seeger, 990 So. 2d 503, 513 (Fla. 2008).

46 Weaver, 170 So. 3d at 880-81.

47 Id. at 881 (citing Biscayne Kennel Club, Inc. v. Fla. State Racing Comm’n, 165 So. 2d 762, 763-64 (Fla. 1964)).

48 Id. at 881.

49 Id. at 882-83.

50 Lindberg v. Hosp. Corp. of Am., 545 So. 2d 1384, 1386 (Fla. 4th DCA 1989), approved 571 So. 2d 446 (Fla. 1990).

51 Barker v. Barker, 909 So. 2d 333, 337 (Fla. 2d DCA 2005); Fla. Stat. §766.106(2)(a) (2017).

52 Weaver, 170 So. 3d at 883 (citing Murphy v. Dulay, 768 F.3d 1360 (11th Cir. 2014)).

53 Amended Brief of Petitioner at 2, Weaver v. Myers, No. SC15-1538 (Fla. 2015) (citing Fla. Const. art. V, §3(b)(1) & (3)).

54 Id. at 3 (citing Kirian, 579 So. 2d 730, 732 (Fla. 1991)).

55 Id. at 4.

56 Id. at 7-9.

57 Respondents’ Brief of Jurisdiction at 2, Weaver v. Myers, No. SC15-1538 (Fla. 2015).

58 See Amicus Brief of the State of Florida in Support of Respondents, Weaver v. Myers, No. SC15-1538 (Fla. 2015).

59 Id. at 5-6.

60 Id. at 10.

61 Id. at 16.

62 Weaver v. Myers, 229 So. 3d 1118, 1126 (Fla. 2017).

63 Id. at 1127, 1132.

64 Id. at 1129.

65 Id. at 1133.

66 Id. at 1137.

67 Id. at 1141.

68 Id. at 1142 (Canady, J. dissenting).

69 Id. at 1143.

70 Id. at 1149.

71 Id. at 1132 (citing Poston v. Wiggins, 112 So. 3d 783, 786 (Fla. 1st DCA 2013)).

72 See generally Edward J. Carbone, Presuit Nuts ‘n’ Bolts, 27 Trial Advoc. Q. 27 (2007).

73 Fla. Stat. §766.106(6)(b)(1) (2017).

74 Fla. Stat. §766.106(6)(b)(5) (2017).

75 Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So. 2d 277, 282 (Fla. 2d DCA 2005) (finding that, before the express written amendments, when a doctor communicates with hospital management and hospital counsel, the communications are not disclosures); Lee Mem’l Health Sys., Inc. v. Smith, 40 So. 3d 106, 108 (Fla. 2d DCA 2010) (holding that employers are permitted to discuss a pending lawsuit with their employees and no disclosure occurs when the information obtained is in the course of employment); Damsky v. Univ. of Miami, 152 So. 3d 789, 791 (Fla. 3d DCA 2014) (determining that Stephens was an exception to the ruling in Hasan, 108 So. 3d 570).

76 Fla. Stat. §456.057(7) (2017).

77 See 45 C.F.R. §160.103 (2016).

78 See note 75.

79 Lee Mem’l Health Sys., 40 So. 3d at 108.

80 Florida has 210 hospitals, behind Texas’ 404 and California’s 342. Total Hospitals, Kaiser Family Foundation, http://kff.org/other/state-indicator/total-hospitals/?currentTimeframe=0&sortModel=%7B%22colId%
22:%22Location%22,%22sort%22:%22asc%22%7D
.

81 Number of Certified Rural Health Clinics, Kaiser Family Foundation, http://kff.org/other/state-indicator/total-rural-health-clinics/?state=FL.

82 These systems are Florida Hospital, Jackson Health System, Orlando Health, Memorial Regional Hospital, and Tampa General Hospital. Denise Hicks, Top Florida Hospitals Statewide: Ranked by Licensed Beds, Orlando Bus. J. (Dec. 5, 2014), available at http://www.bizjournals.com/orlando/subscriber-only/2014/12/05/florida-hosptials.html.

83 See Our Doctors, U.S. Dep’t of Veterans Affairs, https://www.va.gov/providerinfo/index.asp; Health System Facts and Figures, UF Health, https://ufhealth.org/health-system-facts-and-figures; Doctors of USF Health, USF Health, http://health.usf.edu/doctors/; Faculty and Staff Directory, FIU Herbert Wertheim College of Medicine, https://medicine.fiu.edu/about/faculty-and-staff/index.html; Our Team, UCF Health, https://ucfhealth.com/our-team/; Meet Our Providers, UCF Student Health Services, https://shs.sdes.ucf.edu/providers; Faculty & Staff Directory, FAU Charles E. Schmidt College of Medicine, http://med.fau.edu/faculty/index.php; Directory, Florida State College of Medicine, http://med.fsu.edu/index.cfm?fuseaction=directory.home&usetemplate=column.

84 David B. Muhlestein & Nathan J. Smith, Physician Consolidation: Rapid Movement from Small to Large Group Practices, 35 Health Affairs 1638, 1642 (2016).

85 2016 Physician Practice Trends, Jackson Health Care 56, https://www.jacksonhealthcare.com/physician-trends/main-feature-story/physician-trends-2016-report/.

86 Id. at 57.

87 Emily Rappleye, Hospital Ownership of Physician Practices Up 86 Percent, Becker’s Hosp. Rev. (Sept. 7, 2016), available at http://www.beckershospitalreview.com/hospital-physician-relationships/hospital-ownership-of-physician-practices-up-86.html.

88 Jeff Goldsmith, Nathan Kaufman & Lawton Burns, The Tangled Hospital-Physician Relationship, The Health Affairs Blog (May 9, 2016), http://healthaffairs.org/blog/2016/05/09/the-tangled-hospital-physician-relationship/.

89 State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002) (citing Fla. Const. art. I, §23); State Farm Mut. Auto. Ins. Co. v. Kugler, 840 F. Supp. 2d 1323, 1327 (S.D. Fla. 2011) (citing Fla. Const. art. I, §23; State v. Johnson, 814 So. 2d 390 (Fla. 2002)).

90 Chames v. DeMayo, 972 So. 2d 850, 860 (Fla. 2007) (citing In re Amendments to the Rules Regulating the Fla. Bar — Rule 4-1.5(f)(4)(B), 939 So. 2d 1032, 1038 (Fla. 2006); In re Shambow’s Estate, 15 So. 2d 837 (Fla. 1943)).

91 Chames, 972 So. 2d at 861-62.

92 See, e.g., Kelly G. Dunberg, Note, Just What the Doctor Ordered? How the Patient Safety and Quality Improvement Act May Cure Florida’s Patients’ Right to Know About Adverse Medical Incidents, 64 Fla. L. Rev. 513, 523-24 (2012); Mark D. Killian, Academy, FMA Square Off Over Amendments, Fla. Bar News, July 1, 2004, available at https://webprod.floridabar.org/news/tfb-news/?durl=/DIVCOM/JN/jnnews01.nsf/Articles/D2DF312684CA6D7985256EBB0054607F.

93 See Killian, Academy, FMA Square Off Over Amendments, Fla. Bar News, July 1, 2004.

94 See Court Tells Bar to Draft Waiver for Amend. 3, Fla. Bar News, Jan. 1, 2006, available at https://www4.floridabar.org/divcom/jn/jnnews01.nsf/Articles/F8ACC1D4F34DF491852570E50054489F; for an example of the standard waiver, see Waiver and Amendment to Fee Agreement, https://www4.floridabar.org/TFB/TFBResources.nsf/Attachments/
4CC29AACEF03C9A6852570EB00710360/$FILE/Amend3MedWaiver-eg2.pdf?OpenElement.




BRIAN W. BOELENS is a litigation attorney for the Florida Board of Governors’ Healthcare Education Insurance Company serving the academic healthcare professional liability functions for the University of Florida. He also serves in the same capacity providing professional liability services for Florida Atlantic University, Florida International University, Florida State University, and the University of Central Florida. His work focuses on litigation and the intersections of academia, law, and medicine.

[Revised: 06-22-2018]