The Daily

Weaver v. Myers, M.D.

Lawyers are taught to be circumspect and cautious representing facts. I’m not going to do that here. Because I know better. So with apologies to old-timey practitioners, here is my reading of the Florida Supreme Court’s latest ruling saving consumers from the unrelenting pummeling of the healthcare delivery and insurance markets and their omnipresent and pernicious influence.

In 2013, Florida’s legislature set out on its latest mission to block victims of medical error from ever reaching court. The spider web of rules passed in the late ’80’s was apparently insufficient to satisfy their paymasters in locking these citizens out of the Courthouse. In addition to the old rules that require these victims to prove their cases BEFORE they are filed (without subpoena power to talk to physicians and nurses), Florida added new rules to punish these victims before their cases are even filed. As decided last week by the Florida Supreme Court in Weaver v. Myers, these rules violate patients’ rights to privacy.

Under the new rules, opposing lawyers could force meetings with the victims doctors or meet with them without the victims knowledge. The Legislature’s stated purpose for allowing – to facilitate settlement – these tactics was laughably false. The real purpose of the meetings was to pre-defend the case by turning the victims doctors against them – when the insurance carrier got into their offices through skilled counsel to change the evidence.

Getting access and asserting some degree of control over witnesses is key to success. It’s not a polite thing to say – but in the hostile environment where these cases get litigated, you need to dominate in order to win.

My Father started the deposition of a Defendant by skipping the formalities (no name or address) and just asking right out the gate, “Doctor, when was it you decided to kill my client?”. Papers flew and screams filled the office suite as lawyers set themselves on fire. The deposition was, of course, discontinued so the lawyers could scramble over to the Broward County Courthouse shouting threats and recriminations at one another. Judge Futch quickly sent them back to continue. Instead of the crisp and well prepared witness that started the deposition, the Doctor was now sweating and his tie was loose and askew. It ended up going down very differently than what the Defendant Doctor and his lawyer had planned.

This isn’t to say I’ve tried this at home. It takes a special talent to do it properly, without screwing up your duties and reputation. I’m just trying to make a point – access to witnesses is key and can be used to win. The Florida Supreme Court was right  to invalidate the horrible rules that allowed insurance carriers to secretly violate patient privacy by intimidating their doctors.