In the latest challenge to a Florida law designed to promote early settlement of meritorious medical malpractice claims, the Florida First District Court of Appeal recently rejected a plaintiff’s arguments that 2013 amendments to the law violated the Florida Constitution. See Weaver v. Myers, Case No. 1D14-3178 (Fla. 1st DCA July 21, 2015). The court also summarily rejected the plaintiff’s claim the Florida law was preempted by the Health Insurance Portability and Accountability Act (HIPAA). In doing so, the court specifically adopted the analysis in Murphy v. Dulay, in which a federal appellate court rejected a similar HIPAA preemption challenge to the same Florida law.The challenged Florida law, as amended in 2013 and codified in sections 766.106 and 766.1065, Florida Statutes, requires aggrieved patients to authorize the release of their protected health information from specified health care providers as a presuit condition to suing a medical provider for negligence. This presuit authorization, which must be included with the presuit notice of intent to initiate medical negligence litigation, must also expressly allow certain categories of persons (a doctor defendant or his insurer, expert, or attorney) to interview the listed providers outside the presence of the patient or the patient’s attorney. The authorization does not apply to providers the patient certifies do not possess information relevant to the injury that is the basis of the presuit notice. The providers identified by the patient as possessing relevant PHI are not required to submit to a request for an ex parte interview.

In her lawsuit, the plaintiff argued the amendments were unconstitutional because: (1) they violate the separation of powers doctrine; (2) they constitute an invalid special law; (3) they impermissibly burden the right of access to the courts; and (4) they violate a patient’s right of privacy. The First District was not persuaded by her arguments and concluded the law did not violate the Florida Constitution and was not preempted by HIPAA. Notably, the Court said that the presuit authorization form was a reasonable condition precedent to filing suit, and so did not violate the plaintiff’s right to access to the courts.


The Weaver decision is not yet final, and the plaintiff has 30 days to ask the Florida Supreme Court to review the decision. However, barring any contrary ruling from the Supreme Court, the law remains valid and there are several important takeaways from the Weaver and Murphy decisions:

In Florida, the presuit notice of intent to initiate a medical malpractice action must also include the authorization required under section 766.1065, Florida Statutes.

  • This authorization will allow a defendant, or his or her attorney, to interview a plaintiff’s treating providers outside the presence of the plaintiff or the plaintiff’s attorney.
  • If a plaintiff’s presuit notice does not include the section 766.1065 authorization, the presuit notice is void, and the plaintiff will forego the ability to maintain a medical malpractice action in Florida state court.
  • Although in theory defendants in medical malpractice actions will now have the same access as plaintiffs to treating providers, it remains to be seen whether treating providers will agree to ex parte interviews with defense lawyers.

To read more information about the Florida law and the federal court’s decision in Murphy v. Dulay, please click here.

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