Arguing that the First District Court of Appeals gave too narrow a reading to various state constitutional provisions in conflict with binding precedent, the Center for Constitutional Litigation filed a jurisdictional brief in the Florida Supreme Court, asking it to review the decision. The Florida law, enacted in 2013, requires prospective medical-malpractice plaintiffs to waive their privacy rights with their treating physicians and authorize the putative defendant and the defendant’s litigation allies to interview those physicians without the plaintiff or plaintiff’s lawyer present. The Florida Supreme Court has previously held that the practice was intrusive and likely to produce information unrelated to the lawsuit that remains protected information under confidentiality statutes.

The brief, written by CCL President Robert S. Peck, argues that the appellate court erroneously held that the Florida Supreme Court intended to allow the legislature to supplement the types of discovery the court itself authorized when it promulgated the rule that governs presuit discovery in medical-malpractice cases. Precedent holds that when a statute conflicts with a rule of procedure promulgated by the Supreme Court, the statute must yield. In addition, the brief argues that the First District mistakenly interpreted Florida’s constitutional guarantee of access to the courts to require a complete abolition of a cause of action before it can be violated, an argument the Florida Supreme Court expressly rejected in 1987. Finally, the brief contends that Florida’s strong constitutional right of privacy is violated a law that does not narrowly require a waiver only to the extent that can be justified in the context of a lawsuit. The defendants and the State of Florida are expected to file briefs in opposition.