In a case involving a woman’s brain cancer that became incurable allegedly because of a delayed diagnosis, Berger v. Garner, filed in a Florida Circuit Court, CCL argues that dismissal should be denied because the defendant health care providers’ argument that the refusal to use a form that permits ex parte interviews imposed an unconstitutional condition on commencement of the lawsuit.  The case, set for a hearing next week, involves a 2013 Florida statute that requires medical-malpractice plaintiffs to file a notice of intent to sue at least 90 days before a lawsuit can be filed and include an authorization for the likely defendants, their lawyers, their experts, and their insurance adjusters to interview the plaintiff’s treating physicians without plaintiff’s counsel present. When no such authorization was filed 90 days before suit was brought, the Defendants moved to dismiss, even though they admitted they have never used the authorization to engage in such ex parte interviews.

CCL’s brief for the plaintiff, written by President Robert S. Peck and associate Kathryn Minton, argues that the requirement conflicts with Florida Rule of Civil Procedure 1.650 and is therefore null and void as a legislative invasion of the Florida Supreme Court’s exclusive authority to promulgate rules of court. In addition, the requirement, which requires revelation of private health information not at issue in the case, violates Florida’s strong constitutional right to privacy. The brief further argues that the authorization for ex parte interviews violate the Florida Constitution’s guarantee of access to the courts by not being justified by overpowering public necessity and implemented in the least restrictive fashion. Finally, the brief argues that the ex parte provision constitutes a special law that provides an evidentiary privilege only to medical-malpractice defendants and burden to those claimants, when the issue of personal injuries to which treating physicians have evidence is common to a wide variety of plaintiffs.

A hearing on the motion to dismiss is scheduled for April 7 in Kissimmee, Florida.