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Weaver v. Myers: Supreme Court of Florida Reaffirms that the Right of Privacy is not Retroactively Destroyed by Death.

Reports Privacy

Weaver v. Myers et al., SC15-1538 (Supreme Court of Florida Nov. 9, 2017) hosted by

Last week, the Supreme Court of Florida rendered a 4-3 decision in  Weaver v. Myers. The Court decided that, under the Florida Constitution, the right to privacy is attached during the life of a citizen and cannot be retroactively destroyed by death. By doing so, it declared the legislative authorization of ex parte interviews with physicians during pre-suit investigations unconstitutional. The court determined that such an authorization would fail to protect citizens from the disclosure of confidential information irrelevant to the decision of a case.

According to section 766.203 of the Florida Statutes, a person who wishes to file a medical negligence action must conduct a pre-suit investigation process to ascertain whether there are reasonable grounds to believe that (1) the defendant medical provider was negligent and that (2) the negligence led to injury to the claimant. In 2013, sections 766.106 and 766.1065 of the Florida Statutes were amended in order to authorize covert ex parte interviews as part of the informal discovery process. 

Petitioner Emma Gayle Weaver (“Weaver”), individually and as personal representative of the estate of her late husband, filed for declaratory judgment and injunctive relief against Dr. Stephen C. Myers. She alleged that the 2013 amendments violated the right to privacy under the Florida Constitution. The Circuit Court and the District Court of the Appeal both ruled against Weaver.

The majority of the Florida Supreme Court ruled that the right to privacy is not retroactively destroyed by death. As a constitutional issue, the majority stated that the amendments failed to protect citizens from even accidental disclosures of confidential medical information outside the scope of the claim.

The dissent asserted that the Florida Legislature did not overstep its boundaries by authorizing ex parte interviews of treating physicians, given that the interviews are limited by a relevance standard. The dissent believed that the majority’s decision was based on speculation that members of the legal profession would act outside the law, and that members of the medical community would misunderstand the fact that the ex parte interviews are optional and limited by a relevance standard. The dissent did not address the issue of whether a person’s privacy rights should survive death.

Tiffany A Roddenberry and Jerome W Hoffman, from Holland & Knight LLP, believe that the Florida Supreme Court has taken away a tool for prospective defendants to weed out frivolous or unsupported medical malpractice claims.

From a privacy perspective, the Supreme Court of Florida affirmed that the right of privacy is not retroactively destroyed by death by citing Antico v. Sindt Trucking, Inc. In Antico, the defendant trucking company requested access to cell phone data from decedent on the day of the crash, after alleging that the decedent had been distracted by the phone at the time of the accident. The appellate court recognized the existence of privacy rights after the person’s death, but held that privacy rights don’t totally close the door to discovery of data on digital devices. So long as appropriate consideration is given to one’s privacy and the information sought is relevant, the data could be requested during discovery.

The debate about the survival of a person’s privacy rights can emerge in other contexts. Natasha Chu, for example, has examined why courts should extend tort law to a deceased person’s right of privacy to protect her digital assets. The privacy rights issue discussed in Weaver is also particularly relevant in the technology and data context. Thus, if and when similar disputes arise in such contexts, the majority’s reasoning in Antico and Weaver can be particularly instructive for other courts.  


Osvaldo Galeano Gamarra is an LLM student at Harvard Law School.