Weaver v. Myers: The Future of Ex Parte Communication in Florida Medical Malpractice.

• Author: Boelens, Brian W.

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. [section][section]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. [section]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 [section]455.241 and ex parte communications, a district split quickly emerged. (21) The Florida Supreme Court recognized conflict between the districts and held that [section]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 sub poena. (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. [section][section]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...