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Data Protection Leader
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Volume: 14 Issue: 11
(November 2017)

Keywords:
litigation personal data hipaa health data

Jurisdictions:
florida

Florida: Supreme Court issues decision on privacy after death

The Florida Supreme Court ruled, on 9 November 2017, in Emma Gayle Weaver, etc. v. Stephen C. Myers, M.D., et al., that the right to privacy under Florida’s Constitution does not end upon an individual’s death (‘the Ruling’). The Ruling concerned a medical malpractice claim brought by Weaver as an individual and as personal representative of the estate of her late husband. In particular, Weaver challenged the constitutionality of the 2013 amendments (‘the Amendments’) to Sections 766.106 and 766.1065 of the Florida Statutes, which relate to disclosures that should be made as part of medical negligence actions, on the basis that these violated the right to privacy. The Florida Statutes and the Amendments required Weaver to authorise the release of her husband’s protected health information (‘PHI’), which she alleged was irrelevant to the case, as well as to consent to secret, ex parte interviews between the health providers and the defendant or his legal representatives, in order to proceed with the medical negligence action.

Elizabeth G. Litten, Partner and HIPAA Privacy & Security Officer at Fox Rothschild LLP, said, “In general, I think the Court got it right [and the decision] is completely compatible with the Health Insurance Portability and Accountability Act 1996 (‘HIPAA’), which provides that a covered entity (and its business associates) must comply with protections regarding the PHI of a deceased individual for a period of 50 years following the death. Although HIPAA is a legal framework that vests obligations with those that create, receive, maintain or transmit PHI, rather than creating a general right to privacy of individually identifiable health information inherent to the individual, Americans are familiar with the idea that PHI is uniquely protected under HIPAA and that this protection doesn’t disappear when one dies.”

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