Florida/Georgia Personal Injury & Workers Compensation

...Herber responded that she conducted a good faith investigation prior to receipt of the requested medical records and that she was not required to provide a corroborating affidavit because Martin Memorial failed to timely provide copies of her medical records pursuant to section 766.204(1)....

...rtin Memorial will suffer irreparable harm which could not be cured on plenary appeal. Escobar v. Olortegui, 662 So.2d 1361 (Fla. 4th DCA 1995). Accordingly, the petition is granted and the order quashed. The second issue before us is whether, under section 766.204(2), Ms. Herber is excused from providing a corroborating affidavit because Martin Memorial failed to provide the requested medical records within ten business days from the date of the request. Sections 766.204(1) and (2) provide: (1) Copies of any medical record relevant to any litigation of a medical negligence claim or defense shall be provided to a claimant or a defendant, or to the attorney thereof, at a reasonable charge within 10 business days of a request for copies ....

...(2) Failure to provide copies of such medical records . . . shall constitute evidence of failure of that party to comply with good faith discovery requirements and shall waive the requirement of written *664 medical corroboration by the requesting party. § 766.204(1)-(2), Fla. Stat. We previously held that the failure to provide medical records as required under section 766.204(1) obviates the necessity of providing a corroborating affidavit under section (2)....

...Six months later, Hill asked for the same records which were again promptly supplied. Subsequently, Hill sent a Notice of Intent to Initiate Litigation for Medical Malpractice to CFRH. The notice stated that CFRH failed to produce Hill's medical records within ten business days of her request in compliance with section 766.204, Florida Statutes (1995)....

...The failure to provide corroboration is fatal if the limitation period has run. See Okaloosa County v. Custer, 697 So.2d 1297 (Fla. 1st DCA 1997); Archer v. Maddux, 645 So.2d 544 (Fla. 1st DCA 1994). There is no dispute that a corroborating expert opinion was not supplied in the present case. However, relying on subsection 766.204(2), Florida Statutes (1995), Hill argues that the records provided by petitioner were not complete because they did not contain evidence of the labial tear....

...ndment and that no further legislation was necessary. For example, current legislation should be sufficient to address the issue of fees and timeliness of compliance. See, e.g., § 395.3025, Fla. Stat. (2004); § 456.057(4), (16), Fla. Stat. (2004); § 766.204, Fla....

...sis exists to allow the claim to be pleaded, would not be much of a right if one had to wait until the end of the case to take a final appeal to review the trial court's failure to strike an unauthorized pleading for such damages. Similarly here, if section 766.204(2) provides that respondent's failure to provide copies of petitioner's medical records waives respondent's right to have petitioner file a corroborating affidavit, and petitioner is compelled to file the affidavit anyway, as a condit...

...Indeed, section 766.203, Florida Statutes (1993) expressly states in subsection (1) that presuit investigation of medical negligence claims and defenses pursuant to the statute shall apply to all medical negligence, including dental negligence claims and defenses. Section 766.204, Florida Statutes (1993), provides in part: (1) Copies of any medical record relevant to any litigation of a medical negligence claim or defense shall be provided to a claimant or a defendant, or to the attorney thereof, at a reasonable charge within 10 business days of a request for copies....

...sted. Petitioner contends that the trial court's order in this case fails to apply this waiver by statute, and requires her to do what is no longer *1364 required. See Wilkinson v. Golden, 630 So.2d 1238 (Fla. 2d DCA 1994) (holding, inter alia, that section 766.204 provided that failure to comply with requirement to produce relevant medical records in 10 days resulted in waiver of right to receive medical corroboration from opposing party)....

...However, petitioner contends that this is not adequate compliance with the statutes governing. We agree. Because respondent failed to provide copies of Escobar's actual records, as required, the necessity of corroborating affidavit was waived as provided in subsection (2) of section 766.204....

...Yocom initiated a malpractice presuit investigation pursuant to section 766.203(2), Florida Statutes (2001), with respect to Wuesthoff, but failed to submit a verified written medical expert opinion from a medical expert, as required by the statute. Thereafter, in accordance with section 766.204, Florida Statutes (2001), Dr....

...Yocom to contact Executive Records Services, who apparently had physical custody of the records as the agent of Wuesthoff, and required him to execute a document waiving confidentiality in the provision of the records. Perhaps we should stop for a moment to analyze this. Section 766.204 reads in its entirety, as follows: (1) Copies of any medical record relevant to any litigation of a medical negligence claim or defense shall be provided to a claimant or a defendant, or to the attorney thereof, at a reasonable charge...

...his or her own records. See § 456.057(4) and (5), Florida Statutes (2002). Moreover, subsection (3) of the statute appears to make that requirement superfluous in any event. If the story ended here, we might say that Wuesthoff failed to comply with section 766.204, and that the requirement of written medical corroboration was waived pursuant to subsection (2) of that statute....

...No evidence was ever produced, however, that indicated that the proposed expert possessed the requisite experience or training in urologic procedures that would enable him to offer a qualifying corroborating affidavit. Dr. Yocom never came forward with a sufficient affidavit. Instead he relied on his assertion based on section 766.204(2) that Wuesthoff had waived that requirement by not properly responding to his records request....

...For wholly failing to respond to the presuit notices, the court may impose a reasonable fine as a sanction. Because the doctor failed to provide records in response to the plaintiffs' presuit request, he is precluded from enforcing the requirement of written medical corroboration against them. See § 766.204(2), Fla....

...claim until the birth of their subsequent child, and they filed suit within two years of that date. The statute of limitations issue is not before us on this appeal. [2] The doctor concedes, and we agree, that plaintiffs may obtain the benefit of subsection 766.204(2) simply by showing that defendant failed to produce duly requested documents....

...To invoke this part of the statute, plaintiffs need not make any showing that they were prejudiced by the nonproduction. [3] See footnote 2. The doctor acknowledged that no showing of prejudice is required where the plaintiff seeks the remedy of subsection 766.204(2), Florida Statutes, but argued that a showing of prejudice is required where the plaintiff seeks to strike the doctor's pleadings.

...Watson's failure to provide a verified corroborating expert opinion with the notice of intent to initiate litigation [1] does not justify dismissal. § 766.203(2), Fla. Stat. (1993). That requirement was waived by Dr. Beckman's failure to comply with Ms. Watson's request for copies of her dental records. § 766.204(2), Fla....

...o the University of Miami School of Medicine, as required by section 766.203, Florida Statutes (1997). The Notices asserted that because of defendants' failure "to comply with their obligations to produce the pertinent medical records as required by section 766.204, prospective defendants had waived the requirement of written medical corroboration...." The University agreed to arbitration, eventually settling with the plaintiffs....

...The hospital did not raise Medina's failure to attach a corroborating medical affidavit to her notice of intent until its second amended answer, eight months after the complaint was filed. Finding that the hospital had not waived the corroboration requirement, the trial court dismissed the complaint. Section 766.204(2), Florida Statutes (1997), provides that failure to provide copies of medical records within 10 days "shall waive the requirement of written medical corroboration" by the party requesting the copies. As the hospital far exceeded the section 766.204(1) ten-day deadline in providing Schlesinger with the requested records, under section 766.204(2) the hospital waived the corroborating affidavit requirement....

...We affirm a final order dismissing this medical malpractice complaint for Plaintiffs-Appellants' failure to provide the pre-suit notice mandated by section 766.106, Florida Statutes. Defendant/Appellee's failure to provide full and complete medical records under section 766.204, Florida Statutes, which prevented the plaintiffs from obtaining a medical affidavit as required under section 766.205, Florida Statutes, did not constitute a waiver of the required notice....

...Appellants argue that the notice requirement should be waived where they were unable to fulfill the corresponding statutory pre-suit condition requiring a corroborating medical opinion, due to the doctor's failure to furnish necessary medical records. See §§ 766.204-05, Fla. Stat (1995). Section 766.204(2) provides, "Failure to provide copies of such medical records, or failure to make the charge for copies a reasonable charge, shall constitute evidence of failure of that party to comply with good faith discovery requirements and sha...

...Anderson's failure to submit a verified written medical expert opinion as part of his notice of intent, as required by section 766.203(2), Florida Statutes (2003). Dr. Wagner and Associates also attempted to dispel Mr. Anderson's assertion that no corroborating evidence was necessary under section 766.204 due to Dr....

...5th DCA 1993). In this case, though, Mr. Anderson never provided medical expert opinion supporting his claim, and the trial court dismissed his complaint with prejudice after the statute of limitations had expired. Mr. Anderson argues that under the terms of section 766.204(2), Florida Statutes (2003), he was not required to provide Dr. Wagner with any medical expert corroboration of his claim. Section 766.204(2) states that the "failure to provide copies of medical records within 10 days `shall waive the requirement of written medical corroboration' by the party requesting the copies." Medina v....

...We affirm because Estanillo failed to comply with the presuit medical expert opinion requirement prior to the expiration of the limitations period for the filing of her cause of action. Estanillo admits that she did not file a corroborating affidavit from a medical expert, but argues that pursuant to section 766.204, Florida Statutes (1997), such a requirement was waived. This statute requires that the medical records be provided upon request, and, under section 766.204(2), the failure to provide copies of such medical records "shall constitute evidence of failure of that party to comply with good faith discovery requirements and shall waive the requirement of written medical corroboration by the requesting party" (emphasis added)....

...(NLPT) appeals from a final judgment awarding attorney's fees and costs to June Benson. We reverse the award of fees and affirm the award of costs. Benson sought to obtain a copy of her medical records from NLPT. When she was unsuccessful, Benson filed a petition to obtain her medical records citing sections 456.057 and 766.204, Florida Statutes (2001)....

...The judgment does not state the basis for the fee award. Benson argues that the award is justified because the trial court concluded that NLPT forced her to come into court to get the medical records she had requested. However, neither section 456.057 nor section 766.204 authorizes an award of attorney's fees....

...It does appear that Sztulman was still employed by Dr. Kero and Suncoast when they received Burbank's request for medical records, with which they did not comply. If Dr. Sztulman knew the records had been requested and had not been provided, as required by section 766.204, Florida Statutes, equity should estop him from relying on the statutory scheme to avoid answering for his malpractice....

...ss, to be required to meet his own minimal obligations under the medical malpractice statute in order to be allowed to assert the statute of limitations. I recognize that one court has concluded that failure to provide medical records as required by 766.204(1) does no more than relieve the plaintiff of the requirement of written medical corroboration as otherwise required in chapter 766, Otto v. Rodriguez, 710 So.2d 1 (Fla. 4th DCA 1998), but the language of section 766.204(2) is more broad: Failure to provide copies of such medical records, or failure to make the charge for copies a reasonable charge, shall constitute evidence of failure of that party to comply with good faith discovery requirements and shall waive the requirement of written medical corroboration by the requesting party. The provision in subsection 2 of 766.204 that failure to provide copies "shall constitute failure of that party to comply with good faith discovery requirements" has to have some meaning and purpose....

...ce the records of the plaintiffs care and, (2) upon receipt of the plaintiff's claim, to conduct an investigation and make a response. I believe a court can say that where a physician has failed to comply with good faith discovery requirements under section 766.204, he can be estopped to assert the statute of limitations, provided the plaintiff can show that the physician's misconduct was the cause of the default....

...any deficiency, we need not reach the issue of whether Ms. Martinez was excused from providing a written corroborating expert affidavit because Dr. Perez Ortiz and Perez Eye Center allegedly failed to provide her medical records within ten days of her request, as required by section 766.204(2). 2 condition, she suffered permanent damage to her eye....

plaintiffs request, at a reasonable charge. See § 766.204, Fla. Stat. (1997). The purpose of the statute

...egally insufficient for failure to provide corroborating opinion from a verifiable medical expert. Houston asserts that he is relieved of the requirements of providing corroborating medical expert opinion because the defendants failed to comply with section 766.204, Florida Statutes (2009), by not providing him with copies of the medical records relevant to litigation of his medical negligence claim....

...to clearly indicate what his theory of liability was in reference to the medical negligence claim. In his initial complaint, Houston set forth facts alleging that he had requested copies of his medical records in order to comply with the dictates of section 766.204 and attached a copy of his request in support thereof....

...al court properly dismissed O'Hanrahan's complaint. By citing this, it appears the trial court in the *326 instant case found Houston's Amended Complaint legally insufficient because it did not have the corroborating medical expert opinion attached. Section 766.204, Florida Statutes, is titled "Availability of medical records for presuit investigation of medical negligence claims and defenses; penalty" and provides in pertinent part: (1) Copies of any medical record relevant to any litigation of...

...pital on January 17, 2005. The records were sent to plaintiff on February 1, 2005, more than 10 days later. On appeal, after quoting the statute above, this court held: We previously held that the failure to provide medical records as required under section 766.204(1) obviates the necessity of providing a corroborating affidavit under section (2)....

...See, e.g., § 766.104(1), Fla. Stat. (2023); § 766.106(2)(a), Fla. Stat. (2023); § 766.203(2), Fla. Stat. (2023). 3 The University failed to comply with Jones’s requests for medical records, waiving the requirement for a corroborating medical expert opinion. See § 766.204(2), Fla....

...tute. This is a question for the jury, not appropriate for summary judgment. Id. at 991 (quoting Baxter v. Northrup, 128 So. 3d 908 (Fla. 5th DCA 2013)). In Mobley, this Court was not convinced that a request for medical records pursuant to section 766.204, Florida Statutes (2009), was a definitive 5 indicator of knowledge, when Mobley did not receive a medical opinion suggesting medical malpractice until years later....

...improperly granted summary judgment in the Homestead Hospital's favor.”1 Id. In coming to this conclusion, the Mobley Court stated, [W]e are unable to find a case in Florida that stands for the proposition that contacting an attorney who then files a section 766.204 letter to request medical records satisfies the standard articulated in Tanner for determining when a statute of limitations begins to run in a medical malpractice case; that is, when the plaintiff possesses knowledge of a reasonable possibility of medical malpractice. Id....

...on. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND Dial 4 Care provided home health care services to Brinson in 2016. On May 9, 2019, Brinson sent Dial 4 Care a records request, requesting a copy of his complete medical file, pursuant to section 766.204, Florida Statutes....

...filed a motion to dismiss Brinson’s amended complaint, alleging he failed to comply with 1 Despite the fact that this request was sent after the notice of intent to initiate litigation, the request stated that it was being made pursuant to section 766.204, Florida Statutes. 2 The complaint alleged that Brinson had provided notices of intent to initiate litigation pursuant to section 766.106(2), Florida Statutes; that the notices of intent had been served within two years of the date...

...Brinson concedes in his answer brief that the affidavit has not yet been provided to Dial 4 Care. 3 Brinson argues that by failing to provide documents following requests on May 9, 10, and 29, Dial 4 Care waived that requirement for a written corroborating expert affidavit. See § 766.204(2), Fla. Stat. He cites to numerous cases for the proposition that failure to turn over documents within 10 days of the 766.204 request waives the claimant’s requirement to provide a corroborating affidavit....

...Those cases involve medical providers that were afforded at least ten days to respond, failed to respond (sometimes in well over ten days), and were then sent notices of intent to initiate litigation. There is a difference between records requested under section 766.204 for the plaintiff to conduct a presuit investigation and records requested in the notice of intent letter pursuant to the informal discovery provision of section 766.106....

...ore us whether the statute of limitations has lapsed and whether Brinson is still able to timely provide Dial 4 Care with the affidavit. 7 of a claimant’s obligation to include an expert opinion appears in section 766.204(2), not section 766.106, and applies to a failure to provide medical records for the presuit investigation that precedes the filing of the notice of intent. Section 766.106(6) . . . does not provide for a waiver of the expert opinion requirement.”). Section 766.204, Florida Statutes, is titled “Availability of medical records for presuit investigation of medical negligence claims and defenses; penalty.” Id....

...Our decision does not preclude the trial court from addressing the Calzadas’ 1 claim that they were excused from providing a corroborating affidavit because of Osceola Hospital’s alleged failure to timely provide requested medical records pursuant to section 766.204, Florida Statutes (2013). 3 

...(“HCA”), for the HCA Defendants, on April 4, 2015. He contended that his obligation to submit a verified written medical expert opinion (required by section 766.203(2)) was inapplicable because of HCA’s failure to provide relevant medical records to him within ten days, as required by section 766.204(1), waiving the requirement of written medical corroboration (section 766.204(2))....

...April 6, 2011 Request for Medical Records On April 6, 2011, the Fenster law firm sent Shands a second letter requesting Freeman’s medical records. The letter included a request that Freeman’s medical records be produced within ten days pursuant to section 766.204(1), Florida Statutes....

...section 766.203(2) because she never obtained a written medical expert opinion corroborating her medical malpractice claims. Pusha argued that Shands waived this presuit requirement because Shands failed to produce Freeman’s medical records during presuit discovery as required by section 766.204(2), Florida Statutes....

...that a defendant named in the suit provided negligent care or treatment and that such negligence resulted in an injury to the claimant. § 766.203(2), Fla. Stat. (2011). In order to assist a claimant with reviewing the merits of her potential claim, section 766.204(1), Florida Statutes (2011), requires copies of medical records to be turned over to “a claimant or a defendant, or to the attorney therefore.” Once a claimant has undertaken the investigation required by the Act and before...

...borate that there are reasonable grounds to support the claim of medical negligence. § 766.203(2), Fla. Stat. (2011). However, this requirement may be waived if a defendant fails to timely comply with a claimant’s request for medical records. See § 766.204(2), Fla....

...with a records request); Escobar v. Olortegui, DDS, 662 So. 2d 1361 (Fla. 4th DCA 1995) (holding that failure to provide copies of a plaintiff’s medical records waived the necessity of filing a corroborating affidavit). Although Florida courts construing section 766.204(2) in some cases have found waiver of the right to the presuit written corroborating expert opinion, it has done so only where the defendant has wholly failed to produce records in response to a claimant’s request....

...Instead, Shands sought to determine whether Pusha and/or Teague were authorized to receive Freeman’s medical records, and asked for a copy of a power of attorney or a copy of Freeman’s death certificate before producing the records. Pusha argues that the plain language of section 766.204 contains no requirement that a person requesting records demonstrate their legal authority to receive the records....

...Thus, Pusha argues that the statute requires only that a person requesting a patient’s medical records make a request, and without more, the hospital is obligated to produce the records. We reject this argument for two reasons: first, this construction of section 766.204 is inconsistent with the high degree of protection given to confidential medical records under Florida law; and 8 second, to the extent that Florida’s protection of confidential medical records under section 766.204 is less stringent than HIPAA, section 766.204 is preempted. A....

...malpractice was egregious enough to end the lives of those plaintiffs. Id. at 1127-28. In light of this strong protection for the confidentiality of medical records under other provisions of Florida law, a hospital cannot be deemed to have failed to comply with section 766.204(2) simply by seeking to verify that the person requesting disclosure of another’s confidential medical records is the legal representative of the person whose records have been could not have been sent to Shands when Pusha sent th...

...Such a rule would undermine Florida’s statutory and constitutional protections for the privacy of confidential medical records. B. HIPAA But even if Pusha’s request for Freeman’s medical records was sufficient under section 766.204(1), and complied with Florida’s laws protecting the confidentiality of medical records, Shands was also required to comply with HIPAA and could not produce Freeman’s confidential medical records without a valid authorization form....

...11  Pusha brushes away Shands’ arguments that it was required to comply with HIPAA before disclosing Freeman’s medical records, arguing that the hospital could not be held liable for improper disclosure of medical records pursuant to section 766.204(3), Florida Statutes (2011)....

...ospital from civil damages for claims for releasing medical records required by the statute: “A hospital shall not be held liable for any civil damages as a result of complying with this section.” But Pusha’s argument misses the point. Even if section 766.204(3) could immunize a hospital that improperly released confidential medical records from a lawsuit filed under state law seeking civil damages, nothing in that provision would shield a hospital from federal prosecution if the hospital released the records in violation of HIPAA. See 42 U.S.C. § 1320d-6(b) (authorizing up to ten years’ imprisonment for the wrongful disclosure of individually identifiable health information). Further, to the extent that section 766.204(3) could be construed to permit disclosure of confidential medical records without a valid authorization, it would be preempted by HIPAA. Although HIPAA does not preempt all state laws relating to the privacy of personal health information and medical records, it does preempt those state laws “which are less stringent than HIPAA’s privacy protections.” Paylan v. Fitzgerald, 223 So. 3d 431, 434 (Fla. 2d DCA 2017). An interpretation of section 766.204(3) that would permit disclosure of confidential medical records without a valid authorization necessarily affords less stringent protections to a patient’s privacy than does HIPAA. Under Pusha’s construction of section 766.204(3), a hospital would be forced to navigate between Scylla and Charybdis in deciding whether to produce records in a presuit investigation or to comply with state and federal laws governing the privacy of confidential medical records....

...would forfeit its right to require a potential claimant to seek an expert medical opinion to corroborate her claim. If the hospital produced the medical records without verifying the legal status of the requestor, it could face criminal prosecution under HIPAA. We hold that section 766.204 does not require Shands to face such a 12 dilemma....

...Dennehy’s complaint be dismissed with prejudice. Dennehy filed objections to the proposed order arguing, inter alia, that Appellees had waived the requirement of written medical corroboration by failing to provide Dennehy with legible copies of her medical records as required under section 766.204, Florida Statutes (2020)....

...the requirement of written medical corroboration.” Dennehy’s motion for rehearing concluded with the statement that “the case should have been dismissed without prejudice to allow Dennehy to properly amend her Complaint to assert specifically and expressly” a violation of section 766.204. The trial court summarily denied the motion for rehearing and this timely appeal followed. On appeal, Dennehy does not challenge the trial court’s determination that the corroborating expert witness affidavits were legally insufficient....

...Respondent’s response below focused solely on petitioner’s purported failure to timely provide copies of medical records and the consequent waiver of section 766.203(2)’s requirement that the notice of intent to sue be accompanied by a corroborating medical expert affidavit. See § 766.204(2), Fla....

...o evaluate the merits of the claim.”); Watkins v. Rosenthal, 637 So. 2d 993, 994 (Fla. 3d DCA 1994) (same). 5 While we do not address the merits of this waiver issue, we note that the “failure to provide full and complete medical records under section 766.204, Florida Statutes ....

...We, therefore, grant the petition and quash the challenged order. Petition granted; order quashed. So. 2d 1, 2 (Fla. 4th DCA 1998). Moreover, we note that an informal discovery request contained within the notice of intent to sue does not implicate a section 766.204(2) waiver....