The Florida Supreme Court appeared skeptical about the constitutionality of a 2013 medical-malpractice law that critics argue could lead to violations of patient privacy rights.

Five justices asked critical questions about the law, which is part of years of battles between groups such as doctors and plaintiffs’ attorneys about the state’s malpractice system. The 1st District Court of Appeal upheld the law last year.

The law allows what are known as “ex parte communications” as physicians’ defense attorneys gather information in medical-malpractice disputes. The communications would involve defense attorneys talking with other doctors who have treated the patients involved in the disputes. Those doctors may have treated the patients for issues unrelated to the malpractice allegations — and the patients’ attorneys would not be present for the conversations.

Critics argue, in part, that the law could dissuade people from pursuing medical-malpractice cases because of concerns that private medical information would be disclosed during conversations between their doctors and defense attorneys. During Thursday’s hearing, Justice Barbara Pariente suggested that the law could have a “chilling” effect on malpractice cases.

“Your medical information is one of the most private of what you possess as a citizen, what you talk to your doctor about, your treating doctors, and it could go far from just your medical condition,” Pariente said at another point in the hearing.

The challenge to the law was filed in 2013 in Escambia County. The plaintiff in the case, Emma Gayle Weaver, contemplated filing a medical-malpractice lawsuit against physician Stephen Myers but was concerned about the constitutionality of the ex-parte change, according to court documents. Weaver was the wife of the late Thomas E. Weaver, whose care was at issue in the malpractice allegations.

Erik Bartenhagen, an attorney representing Myers, told the Supreme Court that other states have similar laws and that ex parte communications are aimed at helping resolve malpractice cases.

“The purpose of it is to have a full and free exchange of all information relating to a claim prior to entering the courthouse doors in order to weed out frivolous cases and settle meritorious cases,” Bartenhagen said.

Robert Peck, an attorney representing Weaver, raised a series of constitutional objections to the law, including arguing that it violates privacy rights in the Florida Constitution. Also, he contended that the Legislature’s passage of the law violated the separation of powers because the Supreme Court has the constitutional authority to decide issues such as whether to allow ex parte communications.

The Supreme Court typically takes months to rule on cases. But Pariente was joined by Chief Justice Jorge Labarga and justices R. Fred Lewis, Peggy Quince and James E.C. Perry in asking critical questions about the law. The other justices, Charles Canady and Ricky Polston, sat quietly throughout the 45-minute hearing.

Lewis was particularly pointed in his questions of Bartenhagen, at one point referring to conversations allowed by the law as “clandestine.”

Bartenhagen said much of the patient information can be obtained through other types of evidence-gathering in malpractice cases, but the use of ex parte communications can make the information available earlier.

“I think the feeling is that this will lead to more open and free discussion and that therefore the value of the case will be determined earlier,” he said. “Right now (without ex parte communications), there’s no way for these frank and candid discussions between the defense and other treating physicians to happen until you take a formal deposition or you schedule a sworn statement with the plaintiff there.”

But Lewis indicated he doesn’t think such reasoning means the law is constitutional. He also refuted assertions by Bartenhagen that other protections are in place to prevent the disclosure of private patient information that is not relevant to the malpractice cases.

“There’s no one there (in ex parte discussions) to say, ‘Hey, that’s not relevant, don’t go there,’ ” Lewis said. “How can you protect against it if nobody knows it’s going on?”

DRAMATIC CHANGE IN THE DISCOVERABILITY OF BILLING RECORDS

The Florida Supreme Court recently held that the billing records of the attorney retained by the insurer to defend a lawsuit for insurance benefits or bad faith are discoverable when the insured moves for attorney fees.  The Florida Supreme Court reasoned that the number of hours expended by the insurer’s attorney is relevant to the complexity of the case and the number of hours expended by the insured’s attorney.  This marks a dramatic change in the discoverability of billing records.

In Paton v. Geico Gen. Ins. Co., — So. 3d –, 2016 WL 1163372 (Fla. March 24, 2016), the Florida Supreme Court held, in a four to three decision, that

the hours expended by counsel for the defendant insurance company in a contested claim for attorney’s fees filed pursuant to sections 624.155 and 627.428, Florida Statutes, is relevant to the issue of the reasonableness of time expended by counsel for the plaintiff, and discovery of such information, where disputed, falls within the sound decision of the trial court.

The Supreme Court reasoned that (1) the hours expended by the insurer’s attorney will demonstrate the complexity of the case; (2) the number of hours expended by the insurer’s attorney may belie a claim that the number of hours spent by the insured was unreasonable”; and (3) the billing records may be relevant to whether the insured’s attorney is entitled to a multiplier.

The Florida Supreme Court found that “the entirety of the billing record are not privileged.”  Therefore, if a trial court rules that privileged information may be redacted, that should be sufficient to allow the insured to discover the unredacted portions of the records.

The Paton decision marks a dramatic change in the discoverability of billing records.  Prior to Paton, Florida courts had held that, in attorney fee disputes, the opponent’s billing records were only “marginally relevant.”  HCA Health Services of Florida, Inc. v. Hillman, 870 So. 2d 104, 106 (Fla. 2d DCA 2003).  Therefore, it was only on a “rare occasion” that an opponent’s records could be discovered.  Id.  An example might be “if a party were to challenge whether a mediation session lasted three hours or two days and information could not be obtained from the mediator, it might be appropriate to examine that party’s own billing records as they pertain to the duration of the mediation session.”  Id.

This is an important decision because it opens the door to the discoverability of the billing records of the attorneys insurers retain to defend coverage and bad faith lawsuits.  Although the Florida Supreme Court suggested trial courts should allow insurers to redact “privileged” information, such as entries detailing specific conversations covered by the attorney-client privilege, the scope of these redactions presumably will be in the discretion of trial courts.  The Paton decision also likely will be used by insured’s attorneys to discover billing records in other instances.