A lawyer’s request for medical records made to a Florida hospital during medical malpractice pre-suit must contain specific content before a hospital may disclose patient information. Absent this specific content, which is required under state and federal law, there is no basis for a hospital to produce medical records, and there is no basis for a medical malpractice claimant to allege the hospital waived its pre-suit rights in doing so. Therefore, in
SHANDS JACKSONVILLE MEDICAL CENTER, INC., v. EARTHA PUSHA, as personal representative of the estate of Regina Samone Freeman
, (Fla. 1st DCA 2018), the First District Court of Appeal ruled in favor of Shands when it moved to dismiss the Plaintiff’s Complaint on the grounds the Plaintiff did not supply Shands with a verified medical opinion to corroborate her claim against the hospital during pre-suit.
During pre-suit, the Fenster Law Firm sent Shands two requests for Regina Samone Freeman’s hospital records in connection with her admission to the hospital for heart surgery, which allegedly led to her demise.
The court carefully examined these requests for the content necessary to satisfy the Florida and federal standards for disclosure (by reference to §395.3025, Florida Statutes and HIPAA). The court found that these laws served to protect Regina Samone Freeman’s privacy rights, even though she was deceased. Therefore, Shands was correct to predicate disclosure on a proper authorization before it released Ms. Freeman’s patient records to the Fenster Law Firm.
This case is an excellent guide for when and when not to produce hospital records to an attorney requesting a decedent’s hospital records. Florida law classifies the individuals entitled to another person’s patient records as “any such person's guardian, curator, or personal representative, or in the absence of one of those persons, to the next of kin of a decedent or the parent of a minor, or to anyone designated by such person in writing.” When an attorney vaguely describes his client as a “personal representative” of the decedent, the obligation to produce records under Florida law does not arise. A requesting attorney must demonstrate that his client is one of the individuals listed above who is “legally authorized” to receive the records requested. To satisfy HIPAA, the requesting attorney must also produce an authorization by someone “legally authorized” to receive the records. When this person purports to be a personal representative, “a description of such representative’s authority to act” must be contained within the authorization required by HIPAA for it to be valid.
This case will help ensure that hospitals are treated fairly by courts when hospitals act to protect patient information from disclosure to unauthorized individuals.
If you have any questions or comments regarding the impact of this decision, please call
Tullio E. Iacono
at (305) 350-5320 or
at (813) 864-9333.