A 2015 Florida appellate decision upheld amendments that added private treating-provider interviews to the state’s medical-malpractice presuit process. That was not the final result. In 2017, the Supreme Court of Florida quashed the appellate decision and removed the language that authorized interviews without the claimant or the claimant’s lawyer present.

The Florida Supreme Court did not invalidate the entire medical-malpractice presuit process; it severed two provisions that authorized private interviews without the claimant or counsel present.

Weaver reached a final decision in 2017

The Florida Supreme Court’s Weaver v. Myers, 229 So. 3d 1118 (Fla. 2017), considered 2013 amendments to sections 766.106 and 766.1065. The majority held that the challenged provisions impermissibly conditioned access to court on a waiver of Florida’s constitutional privacy protection. It also held that the personal representative in the wrongful-death action could assert the decedent’s privacy rights.

The court severed two pieces of text. It struck section 766.1065(3)E., which stated that listed persons could interview identified providers without the patient or patient’s lawyer present. It also struck the final sentence of section 766.106(6)(b)5., which purported to permit an interview without further notice if the claimant’s lawyer failed to schedule one.

  • 2013 amendment text separated from the later judicial decision
  • The First District’s 2015 decision separated from the Florida Supreme Court’s 2017 decision
  • The exact private-interview provisions severed by the court
  • Other presuit requirements and discovery methods left outside that limited severance
  • Current statute text checked together with later controlling decisions rather than in isolation

Other Florida presuit provisions remained

Florida’s current section 766.106 describes presuit notice, a screening period, party cooperation, responses, and several informal discovery methods. Those methods include unsworn statements, documents, examinations, written questions, and provisions concerning treating providers. Weaver did not erase the complete section or every means of obtaining relevant medical information.

The current section 766.1065 authorization form concerns protected health information potentially relevant to the claim. The legislature’s online pages still display the two phrases that Weaver severed. Their presence on a printed statute page does not undo the court’s decision; the statute and later controlling decision must be read together.

Interview, unsworn statement, records, and formal discovery are different

  • Private interview: an off-record communication outside the presence of the opposing party or lawyer
  • Unsworn statement: a presuit device governed by notice, participation, use, and other statutory conditions
  • Records authorization or production: disclosure of identified written or electronic medical information within the permitted scope
  • Formal discovery: a later litigation process using depositions, document requests, subpoenas, examinations, and court rulings
  • Relevance and privilege: limits that still require attention regardless of the label placed on the request

North Carolina uses a different legal framework

Florida’s constitutional holding does not determine North Carolina law. North Carolina G.S. 8-53 addresses physician-patient communications, authorization, and judicially compelled disclosure. In Crist v. Moffatt, 326 N.C. 326 (1990), the Supreme Court of North Carolina held that defense counsel may not privately interview a plaintiff’s nonparty treating physician without the plaintiff’s express consent. The court separated discoverability from the method used to obtain information.

  • Identify the jurisdiction and event date before applying a statute or decision
  • Classify the provider as a party, nonparty treater, retained witness, or disclosed expert
  • Preserve the authorization, request, notice, subpoena, order, participants, date, scope, and record created
  • Separate relevant discoverable information from unrelated protected medical history
  • Check later decisions and amendments before relying on text that remains visible on an official statute page

Rosensteel Fleishman Car Accident & Injury Lawyers provides general information about consulting a Charlotte medical malpractice lawyer about how North Carolina treats medical information and provider communications. This article does not provide Florida legal advice. Presuit duties, privacy, authorization, disclosure, and permissible contact depend on the jurisdiction, timing, provider role, complete record, and current law.

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