Florida Senate - 2013 SB 1308
By Senator Lee
1 A bill to be entitled
2 An act relating to medical negligence actions;
3 amending s. 456.057, F.S.; deleting a provision
4 prohibiting the discussion of a patient’s medical
5 condition; providing circumstance under which patient
6 records may be released without prior written
7 authorization; revising conditions under which
8 confidential patient information acquired in the
9 course of care or treatment may be disclosed by a
10 health care practitioner; amending s. 766.106, F.S.;
11 providing that a prospective defendant may conduct an
12 ex parte interview with a claimant’s treating health
13 care provider as a tool of informal discovery;
14 amending s. 766.1065, F.S.; revising the form for the
15 authorization for release of protected health
16 information; providing for the release of protected
17 heath information to certain treating health care
18 providers, insurers, and attorneys; authorizing a
19 treating health care provider, insurer, or attorney to
20 use protected health information in connection with
21 legal services relating to a medical negligence claim;
22 authorizing certain individuals and entities to
23 conduct ex parte interviews with the claimant’s health
24 care providers; providing an effective date.
26 Be It Enacted by the Legislature of the State of Florida:
28 Section 1. Subsections (7) and (8) of section 456.057,
29 Florida Statutes, are amended to read:
30 456.057 Ownership and control of patient records; report or
31 copies of records to be furnished.—
32 (7)(a) Except as otherwise provided in this section and in
33 s. 440.13(4)(c), such records may not be furnished to
, and the
34 medical condition of a patient may not be discussed with, any
35 person other than the patient, or the patient’s legal
36 representative, or other health care practitioners and providers
37 involved in the patient’s care or treatment of the patient,
38 except upon written authorization from of the patient. However,
39 such records may be furnished without written authorization
40 under the following circumstances:
41 1. To any person, firm, or corporation that has procured or
42 furnished such care examination or treatment with the patient’s
44 2. When compulsory physical examination is made pursuant to
45 Rule 1.360, Florida Rules of Civil Procedure, in which case
46 copies of the medical records shall be furnished to both the
47 defendant and the plaintiff.
48 3. In any civil or criminal action, unless otherwise
49 prohibited by law, upon the issuance of a subpoena from a court
50 of competent jurisdiction and proper notice to the patient or
51 the patient’s legal representative by the party seeking such
53 4. For statistical and scientific research, provided the
54 information is abstracted in such a way as to protect the
55 identity of the patient or provided written permission is
56 received from the patient or the patient’s legal representative.
57 5. To a regional poison control center for purposes of
58 treating a poison episode under evaluation, case management of
59 poison cases, or compliance with data collection and reporting
60 requirements of s. 395.1027 and the professional organization
61 that certifies poison control centers in accordance with federal
63 6. To the attorney for the health care practitioner or
64 provider, or to the attorney’s staff, for the purpose of
65 obtaining legal services, whether the attorney is hired directly
66 by the practitioner or provider or by their insurer.
67 (b) Absent a specific written release or authorization
68 permitting utilization of patient information for solicitation
69 or marketing the sale of goods or services, any use of that
70 information for those purposes is prohibited.
71 (8) Information disclosed to a health care practitioner by
72 a patient in the course of the care and treatment of such
73 patient is confidential and may be disclosed only under the
74 following circumstances:
75 (a) To other health care practitioners and providers
76 involved in the care or treatment of the patient.
77 (b) Pursuant to s. 766.106(6)(b)5.
78 (c) As provided for in the authorization for release of
79 protected health information filed by the patient pursuant to s.
81 (d) If permitted by written authorization from the patient.
82 (e) If compelled by subpoena at a deposition, evidentiary
83 hearing, or trial for which proper notice has been given.
84 (f) To the attorney for the health care practitioner or
85 provider, or to the attorney’s staff, whether the attorney is
86 hired directly by the practitioner or provider or by their
88 (g) If the health care practitioner or provider is, or
89 reasonably expects to be, named as a defendant in a medical
90 negligence action or administrative proceeding Except in a
91 medical negligence action or administrative proceeding when a
92 health care practitioner or provider is or reasonably expects to
93 be named as a defendant, information disclosed to a health care
94 practitioner by a patient in the course of the care and
95 treatment of such patient is confidential and may be disclosed
96 only to other health care practitioners and providers involved
97 in the care or treatment of the patient, or if permitted by
98 written authorization from the patient or compelled by subpoena
99 at a deposition, evidentiary hearing, or trial for which proper
100 notice has been given.
101 Section 2. Paragraph (b) of subsection (6) of section
102 766.106, Florida Statutes, is amended to read:
103 766.106 Notice before filing action for medical negligence;
104 presuit screening period; offers for admission of liability and
105 for arbitration; informal discovery; review.—
106 (6) INFORMAL DISCOVERY.—
107 (b) Informal discovery may be used by a party to obtain
108 unsworn statements, the production of documents or things, and
109 physical and mental examinations, as follows:
110 1. Unsworn statements.—Any party may require other parties
111 to appear for the taking of an unsworn statement. Such
112 statements may be used only for the purpose of presuit screening
113 and are not discoverable or admissible in any civil action for
114 any purpose by any party. A party desiring to take the unsworn
115 statement of any party must give reasonable notice in writing to
116 all parties. The notice must state the time and place for taking
117 the statement and the name and address of the party to be
118 examined. Unless otherwise impractical, the examination of any
119 party must be done at the same time by all other parties. Any
120 party may be represented by counsel at the taking of an unsworn
121 statement. An unsworn statement may be recorded electronically,
122 stenographically, or on videotape. The taking of unsworn
123 statements is subject to the provisions of the Florida Rules of
124 Civil Procedure and may be terminated for abuses.
125 2. Documents or things.—Any party may request discovery of
126 documents or things. The documents or things must be produced,
127 at the expense of the requesting party, within 20 days after the
128 date of receipt of the request. A party is required to produce
129 discoverable documents or things within that party’s possession
130 or control. Medical records shall be produced as provided in s.
132 3. Physical and mental examinations.—A prospective
133 defendant may require an injured claimant to appear for
134 examination by an appropriate health care provider. The
135 prospective defendant shall give reasonable notice in writing to
136 all parties as to the time and place for examination. Unless
137 otherwise impractical, a claimant is required to submit to only
138 one examination on behalf of all potential defendants. The
139 practicality of a single examination must be determined by the
140 nature of the claimant’s condition, as it relates to the
141 liability of each prospective defendant. Such examination report
142 is available to the parties and their attorneys upon payment of
143 the reasonable cost of reproduction and may be used only for the
144 purpose of presuit screening. Otherwise, such examination report
145 is confidential and exempt from the provisions of s. 119.07(1)
146 and s. 24(a), Art. I of the State Constitution.
147 4. Written questions.—Any party may request answers to
148 written questions, the number of which may not exceed 30,
149 including subparts. A response must be made within 20 days after
150 receipt of the questions.
151 5. Ex parte interviews of treating health care providers.—A
152 prospective defendant or his or her legal representative may
153 interview the claimant’s treating health care providers, without
154 notice to, or the presence of, the claimant or the claimant’s
155 legal representative.
156 6. 5. Unsworn statements of treating health care providers.
157 A prospective defendant or his or her legal representative may
158 also take unsworn statements of the claimant’s treating health
159 care providers. The statements must be limited to those areas
160 that are potentially relevant to the claim of personal injury or
161 wrongful death. Subject to the procedural requirements of
162 subparagraph 1., a prospective defendant may take unsworn
163 statements from a claimant’s treating physicians. Reasonable
164 notice and opportunity to be heard must be given to the claimant
165 or the claimant’s legal representative before taking unsworn
166 statements. The claimant or claimant’s legal representative has
167 the right to attend the taking of such unsworn statements.
168 Section 3. Subsection (3) of section 766.1065, Florida
169 Statutes, is amended to read:
170 766.1065 Authorization for release of protected health
172 (3) The authorization required by this section shall be in
173 the following form and shall be construed in accordance with the
174 “Standards for Privacy of Individually Identifiable Health
175 Information” in 45 C.F.R. parts 160 and 164:
177 AUTHORIZATION FOR RELEASE OF
178 PROTECTED HEALTH INFORMATION
180 A. I, (...Name of patient or authorized
181 representative...) [hereinafter “Patient”], authorize
182 that (...Name of health care provider to whom the
183 presuit notice is directed...) and his/her/its
184 insurer(s), self-insurer(s), and attorney(s), and the
185 designated treating health care provider(s) listed
186 below and his/her/its insurer(s), self-insurer(s), and
187 attorney(s) may obtain and disclose (within the
188 parameters set out below) the protected health
189 information described below for the following specific
191 1. Facilitating the investigation and evaluation
192 of the medical negligence claim described in the
193 accompanying presuit notice; or
194 2. Defending against any litigation arising out
195 of the medical negligence claim made on the basis of
196 the accompanying presuit notice; or .
197 3. Obtaining legal advice or representation
198 arising out of the medical negligence claim described
199 in the accompanying presuit notice.
200 B. The health information obtained, used, or
201 disclosed extends to, and includes, the verbal health
202 information as well as the written health information
203 and is described as follows:
204 1. The health information in the custody of the
205 following health care providers who have examined,
206 evaluated, or treated the Patient in connection with
207 injuries complained of after the alleged act of
208 negligence: (List the name and current address of all
209 health care providers). This authorization extends to
210 any additional health care providers that may in the
211 future evaluate, examine, or treat the Patient for the
212 injuries complained of.
213 2. The health information in the custody of the
214 following health care providers who have examined,
215 evaluated, or treated the Patient during a period
216 commencing 2 years before the incident that is the
217 basis of the accompanying presuit notice.
219 (List the name and current address of such health care
220 providers, if applicable.)
222 C. This authorization does not apply to the
223 following list of health care providers possessing
224 health care information about the Patient because the
225 Patient certifies that such health care information is
226 not potentially relevant to the claim of personal
227 injury or wrongful death that is the basis of the
228 accompanying presuit notice.
230 (List the name of each health care provider to whom
231 this authorization does not apply and the inclusive
232 dates of examination, evaluation, or treatment to be
233 withheld from disclosure. If none, specify “none.”)
235 D. The persons or class of persons to whom the
236 Patient authorizes such health information to be
237 disclosed or by whom such health information is to be
239 1. Any health care provider providing care or
240 treatment for the Patient.
241 2. Any liability insurer or self-insurer
242 providing liability insurance coverage, self
243 insurance, or defense to any health care provider to
244 whom presuit notice is given, or to any health care
245 provider listed in subsections B.1.-2. above,
246 regarding the care and treatment of the Patient.
247 3. Any consulting or testifying expert employed
248 by or on behalf of (name of health care provider to
249 whom presuit notice was given) and his/her/its
250 insurer(s), self-insurer(s), or attorney(s) regarding
251 the matter of the presuit notice accompanying this
253 4. Any attorney (including his/her secretarial,
254 clerical, or paralegal staff) employed by or on behalf
255 of (name of health care provider to whom presuit
256 notice was given) or employed by or on behalf of any
257 health care provider(s) listed in subsections B.1.-2.
258 above, regarding the matter of the presuit notice
259 accompanying this authorization or the care and
260 treatment of the Patient.
261 5. Any trier of the law or facts relating to any
262 suit filed seeking damages arising out of the medical
263 care or treatment of the Patient.
264 E. This authorization expressly allows the
265 persons or class of persons listed in subsections
266 D.2.-4. above to interview the health care providers
267 listed in subsections B.1.-2. above, without notice to
268 or the presence of the Patient or the Patient’s
270 F. E. This authorization expires upon resolution
271 of the claim or at the conclusion of any litigation
272 instituted in connection with the matter of the
273 presuit notice accompanying this authorization,
274 whichever occurs first.
275 G. F. The Patient understands that, without
276 exception, the Patient has the right to revoke this
277 authorization in writing. The Patient further
278 understands that the consequence of any such
279 revocation is that the presuit notice under s.
280 766.106(2), Florida Statutes, is deemed retroactively
281 void from the date of issuance, and any tolling effect
282 that the presuit notice may have had on any applicable
283 statute-of-limitations period is retroactively
284 rendered void.
285 H. G. The Patient understands that signing this
286 authorization is not a condition for continued
287 treatment, payment, enrollment, or eligibility for
288 health plan benefits.
289 I. H. The Patient understands that information
290 used or disclosed under this authorization may be
291 subject to additional disclosure by the recipient and
292 may not be protected by federal HIPAA privacy
295 Signature of Patient/Representative: ....
296 Date: ....
297 Name of Patient/Representative: ....
298 Description of Representative’s Authority: ....
299 Section 4. This act shall take effect July 1, 2013.