ENROLLED
       2013 Legislature                          SB 1792, 1st Engrossed
       
       
       
       
       
       
                                                             20131792er
    1  
    2         An act relating to medical negligence actions;
    3         amending s. 456.057, F.S.; authorizing a health care
    4         practitioner or provider who reasonably expects to be
    5         deposed, to be called as a witness, or to receive
    6         discovery requests to consult with an attorney on
    7         certain matters; authorizing the disclosure of patient
    8         information in connection with litigation under
    9         certain circumstances; prohibiting a medical liability
   10         insurer from selecting an attorney for a health care
   11         practitioner or provider or recommending that a
   12         practitioner or provider seek legal counsel on a
   13         particular matter; authorizing a medical liability
   14         insurer to recommend an attorney to a health care
   15         practitioner or provider under certain circumstances;
   16         restricting the health care practitioner’s or
   17         provider’s attorney from disclosing information to the
   18         medical liability insurer under certain circumstances;
   19         authorizing the health care practitioner’s or
   20         provider’s attorney to represent the insurer or other
   21         insureds of the insurer in unrelated matters;
   22         specifying exceptions to the limitations on
   23         disclosures by the attorney to the insurer of the
   24         practitioner or provider; amending s. 766.102, F.S.;
   25         revising qualifications to give expert testimony on
   26         the prevailing professional standard of care; deleting
   27         provision regarding limitations of section; amending
   28         s. 766.106, F.S.; providing that a prospective
   29         defendant may conduct an interview with a claimant’s
   30         treating health care provider as a tool of informal
   31         discovery; amending s. 766.1065, F.S.; revising the
   32         form for the authorization of release of protected
   33         health information; providing for the release of
   34         protected health information to certain treating
   35         health care providers, insurers, and attorneys;
   36         authorizing a treating health care provider, insurer,
   37         or attorney to use protected health information in
   38         connection with legal services relating to a medical
   39         negligence claim; authorizing certain individuals and
   40         entities to conduct interviews with the claimant’s
   41         health care providers; amending s. 381.028, F.S.;
   42         conforming a cross-reference to changes made by the
   43         act; providing for application of the act to certain
   44         causes of action; providing an effective date.
   45  
   46  Be It Enacted by the Legislature of the State of Florida:
   47  
   48         Section 1. Subsections (7) and (8) of section 456.057,
   49  Florida Statutes, are amended, and present subsections (9)
   50  through (21) of that section are renumbered as subsections (8)
   51  through (20), respectively, to read:
   52         456.057 Ownership and control of patient records; report or
   53  copies of records to be furnished; disclosure of information.—
   54         (7)(a) Except as otherwise provided in this section and in
   55  s. 440.13(4)(c), such records may not be furnished to, and the
   56  medical condition of a patient may not be discussed with, any
   57  person other than the patient, or the patient’s legal
   58  representative, or other health care practitioners and providers
   59  involved in the patient’s care or treatment of the patient,
   60  except upon written authorization from of the patient. However,
   61  such records may be furnished without written authorization
   62  under the following circumstances:
   63         1. To any person, firm, or corporation that has procured or
   64  furnished such care examination or treatment with the patient’s
   65  consent.
   66         2. When compulsory physical examination is made pursuant to
   67  Rule 1.360, Florida Rules of Civil Procedure, in which case
   68  copies of the medical records shall be furnished to both the
   69  defendant and the plaintiff.
   70         3. In any civil or criminal action, unless otherwise
   71  prohibited by law, upon the issuance of a subpoena from a court
   72  of competent jurisdiction and proper notice to the patient or
   73  the patient’s legal representative by the party seeking such
   74  records.
   75         4. For statistical and scientific research, provided the
   76  information is abstracted in such a way as to protect the
   77  identity of the patient or provided written permission is
   78  received from the patient or the patient’s legal representative.
   79         5. To a regional poison control center for purposes of
   80  treating a poison episode under evaluation, case management of
   81  poison cases, or compliance with data collection and reporting
   82  requirements of s. 395.1027 and the professional organization
   83  that certifies poison control centers in accordance with federal
   84  law.
   85         (b) Absent a specific written release or authorization
   86  permitting utilization of patient information for solicitation
   87  or marketing the sale of goods or services, any use of that
   88  information for those purposes is prohibited.
   89         (c)(8)Except in a medical negligence action or
   90  administrative proceeding when a health care practitioner or
   91  provider is or reasonably expects to be named as a defendant,
   92  Information disclosed to a health care practitioner by a patient
   93  in the course of the care and treatment of such patient is
   94  confidential and may be disclosed only to other health care
   95  practitioners and providers involved in the care or treatment of
   96  the patient, or if allowed permitted by written authorization
   97  from the patient, or if compelled by subpoena at a deposition,
   98  evidentiary hearing, or trial for which proper notice has been
   99  given.
  100         (d) Notwithstanding paragraphs (a)-(c), information
  101  disclosed by a patient to a health care practitioner or provider
  102  or records created by the practitioner or provider during the
  103  course of care or treatment of the patient may be disclosed:
  104         1. In a medical negligence action or administrative
  105  proceeding if the health care practitioner or provider is or
  106  reasonably expects to be named as a defendant;
  107         2. Pursuant to s. 766.106(6)(b)5.;
  108         3.As provided for in the authorization for release of
  109  protected health information filed by the patient pursuant to s.
  110  766.1065; or
  111         4.To the health care practitioner’s or provider’s attorney
  112  during a consultation if the health care practitioner or
  113  provider reasonably expects to be deposed, to be called as a
  114  witness, or to receive formal or informal discovery requests in
  115  a medical negligence action, presuit investigation of medical
  116  negligence, or administrative proceeding.
  117         a. If the medical liability insurer of a health care
  118  practitioner or provider described in this subparagraph
  119  represents a defendant or prospective defendant in a medical
  120  negligence action:
  121         (I) The insurer for the health care practitioner or
  122  provider may not contact the health care practitioner or
  123  provider to recommend that the health care practitioner or
  124  provider seek legal counsel relating to a particular matter.
  125         (II) The insurer may not select an attorney for the
  126  practitioner or the provider. However, the insurer may recommend
  127  attorneys who do not represent a defendant or prospective
  128  defendant in the matter if the practitioner or provider contacts
  129  an insurer relating to the practitioner’s or provider’s
  130  potential involvement in the matter.
  131         (III) The attorney selected by the practitioner or the
  132  provider may not, directly or indirectly, disclose to the
  133  insurer any information relating to the representation of the
  134  practitioner or the provider other than the categories of work
  135  performed or the amount of time applicable to each category for
  136  billing or reimbursement purposes. The attorney selected by the
  137  practitioner or the provider may represent the insurer or other
  138  insureds of the insurer in an unrelated matter.
  139         b.The limitations in this subparagraph do not apply if the
  140  attorney reasonably expects the practitioner or provider to be
  141  named as a defendant and the practitioner or provider agrees
  142  with the attorney’s assessment, if the practitioner or provider
  143  receives a presuit notice pursuant to chapter 766, or if the
  144  practitioner or provider is named as a defendant.
  145         Section 2. Paragraph (a) of subsection (5) and subsection
  146  (14) of section 766.102, Florida Statutes, are amended to read:
  147         766.102 Medical negligence; standards of recovery; expert
  148  witness.—
  149         (5) A person may not give expert testimony concerning the
  150  prevailing professional standard of care unless the person is a
  151  health care provider who holds an active and valid license and
  152  conducts a complete review of the pertinent medical records and
  153  meets the following criteria:
  154         (a) If the health care provider against whom or on whose
  155  behalf the testimony is offered is a specialist, the expert
  156  witness must:
  157         1. Specialize in the same specialty as the health care
  158  provider against whom or on whose behalf the testimony is
  159  offered; or specialize in a similar specialty that includes the
  160  evaluation, diagnosis, or treatment of the medical condition
  161  that is the subject of the claim and have prior experience
  162  treating similar patients; and
  163         2. Have devoted professional time during the 3 years
  164  immediately preceding the date of the occurrence that is the
  165  basis for the action to:
  166         a. The active clinical practice of, or consulting with
  167  respect to, the same or similar specialty that includes the
  168  evaluation, diagnosis, or treatment of the medical condition
  169  that is the subject of the claim and have prior experience
  170  treating similar patients;
  171         b. Instruction of students in an accredited health
  172  professional school or accredited residency or clinical research
  173  program in the same or similar specialty; or
  174         c. A clinical research program that is affiliated with an
  175  accredited health professional school or accredited residency or
  176  clinical research program in the same or similar specialty.
  177         (14) This section does not limit the power of the trial
  178  court to disqualify or qualify an expert witness on grounds
  179  other than the qualifications in this section.
  180         Section 3. Paragraph (b) of subsection (6) of section
  181  766.106, Florida Statutes, is amended to read:
  182         766.106 Notice before filing action for medical negligence;
  183  presuit screening period; offers for admission of liability and
  184  for arbitration; informal discovery; review.—
  185         (6) INFORMAL DISCOVERY.—
  186         (b) Informal discovery may be used by a party to obtain
  187  unsworn statements, the production of documents or things, and
  188  physical and mental examinations, as follows:
  189         1. Unsworn statements.—Any party may require other parties
  190  to appear for the taking of an unsworn statement. Such
  191  statements may be used only for the purpose of presuit screening
  192  and are not discoverable or admissible in any civil action for
  193  any purpose by any party. A party desiring to take the unsworn
  194  statement of any party must give reasonable notice in writing to
  195  all parties. The notice must state the time and place for taking
  196  the statement and the name and address of the party to be
  197  examined. Unless otherwise impractical, the examination of any
  198  party must be done at the same time by all other parties. Any
  199  party may be represented by counsel at the taking of an unsworn
  200  statement. An unsworn statement may be recorded electronically,
  201  stenographically, or on videotape. The taking of unsworn
  202  statements is subject to the provisions of the Florida Rules of
  203  Civil Procedure and may be terminated for abuses.
  204         2. Documents or things.—Any party may request discovery of
  205  documents or things. The documents or things must be produced,
  206  at the expense of the requesting party, within 20 days after the
  207  date of receipt of the request. A party is required to produce
  208  discoverable documents or things within that party’s possession
  209  or control. Medical records shall be produced as provided in s.
  210  766.204.
  211         3. Physical and mental examinations.—A prospective
  212  defendant may require an injured claimant to appear for
  213  examination by an appropriate health care provider. The
  214  prospective defendant shall give reasonable notice in writing to
  215  all parties as to the time and place for examination. Unless
  216  otherwise impractical, a claimant is required to submit to only
  217  one examination on behalf of all potential defendants. The
  218  practicality of a single examination must be determined by the
  219  nature of the claimant’s condition, as it relates to the
  220  liability of each prospective defendant. Such examination report
  221  is available to the parties and their attorneys upon payment of
  222  the reasonable cost of reproduction and may be used only for the
  223  purpose of presuit screening. Otherwise, such examination report
  224  is confidential and exempt from the provisions of s. 119.07(1)
  225  and s. 24(a), Art. I of the State Constitution.
  226         4. Written questions.—Any party may request answers to
  227  written questions, the number of which may not exceed 30,
  228  including subparts. A response must be made within 20 days after
  229  receipt of the questions.
  230         5. Interviews of treating health care providers.—A
  231  prospective defendant or his or her legal representative may
  232  interview the claimant’s treating health care providers
  233  consistent with the authorization for release of protected
  234  health information. This subparagraph does not require a
  235  claimant’s treating health care provider to submit to a request
  236  for an interview. Notice of the intent to conduct an interview
  237  shall be provided to the claimant or the claimant’s legal
  238  representative, who shall be responsible for arranging a
  239  mutually convenient date, time, and location for the interview
  240  within 15 days after the request is made. For subsequent
  241  interviews, the prospective defendant or his or her
  242  representative shall notify the claimant and his or her legal
  243  representative at least 72 hours before the subsequent
  244  interview. If the claimant’s attorney fails to schedule an
  245  interview, the prospective defendant or his or her legal
  246  representative may attempt to conduct an interview without
  247  further notice to the claimant or the claimant’s legal
  248  representative.
  249         6.5. Unsworn statements of treating health care providers.
  250  A prospective defendant or his or her legal representative may
  251  also take unsworn statements of the claimant’s treating health
  252  care providers. The statements must be limited to those areas
  253  that are potentially relevant to the claim of personal injury or
  254  wrongful death. Subject to the procedural requirements of
  255  subparagraph 1., a prospective defendant may take unsworn
  256  statements from a claimant’s treating physicians. Reasonable
  257  notice and opportunity to be heard must be given to the claimant
  258  or the claimant’s legal representative before taking unsworn
  259  statements. The claimant or claimant’s legal representative has
  260  the right to attend the taking of such unsworn statements.
  261         Section 4. Subsection (3) of section 766.1065, Florida
  262  Statutes, is amended to read:
  263         766.1065 Authorization for release of protected health
  264  information.—
  265         (3) The authorization required by this section shall be in
  266  the following form and shall be construed in accordance with the
  267  “Standards for Privacy of Individually Identifiable Health
  268  Information” in 45 C.F.R. parts 160 and 164:
  269  
  270                    AUTHORIZATION FOR RELEASE OF                   
  271                    PROTECTED HEALTH INFORMATION                   
  272  
  273         A. I, (...Name of patient or authorized
  274         representative...) [hereinafter “Patient”], authorize
  275         that (...Name of health care provider to whom the
  276         presuit notice is directed...) and his/her/its
  277         insurer(s), self-insurer(s), and attorney(s), and the
  278         designated treating health care provider(s) listed
  279         below and his/her/its insurer(s), self-insurer(s), and
  280         attorney(s) may obtain and disclose (within the
  281         parameters set out below) the protected health
  282         information described below for the following specific
  283         purposes:
  284         1. Facilitating the investigation and evaluation
  285         of the medical negligence claim described in the
  286         accompanying presuit notice; or
  287         2. Defending against any litigation arising out
  288         of the medical negligence claim made on the basis of
  289         the accompanying presuit notice; or.
  290         3. Obtaining legal advice or representation
  291         arising out of the medical negligence claim described
  292         in the accompanying presuit notice.
  293         B. The health information obtained, used, or
  294         disclosed extends to, and includes, the verbal health
  295         information as well as the written health information
  296         and is described as follows:
  297         1. The health information in the custody of the
  298         following health care providers who have examined,
  299         evaluated, or treated the Patient in connection with
  300         injuries complained of after the alleged act of
  301         negligence: (List the name and current address of all
  302         health care providers). This authorization extends to
  303         any additional health care providers that may in the
  304         future evaluate, examine, or treat the Patient for the
  305         injuries complained of.
  306         2. The health information in the custody of the
  307         following health care providers who have examined,
  308         evaluated, or treated the Patient during a period
  309         commencing 2 years before the incident that is the
  310         basis of the accompanying presuit notice.
  311  
  312         (List the name and current address of such health care
  313         providers, if applicable.)
  314  
  315         C. This authorization does not apply to the
  316         following list of health care providers possessing
  317         health care information about the Patient because the
  318         Patient certifies that such health care information is
  319         not potentially relevant to the claim of personal
  320         injury or wrongful death that is the basis of the
  321         accompanying presuit notice.
  322  
  323         (List the name of each health care provider to whom
  324         this authorization does not apply and the inclusive
  325         dates of examination, evaluation, or treatment to be
  326         withheld from disclosure. If none, specify “none.”)
  327  
  328         D. The persons or class of persons to whom the
  329         Patient authorizes such health information to be
  330         disclosed or by whom such health information is to be
  331         used:
  332         1. Any health care provider providing care or
  333         treatment for the Patient.
  334         2. Any liability insurer or self-insurer
  335         providing liability insurance coverage, self
  336         insurance, or defense to any health care provider to
  337         whom presuit notice is given, or to any health care
  338         provider listed in subsections B.1.-2. above,
  339         regarding the care and treatment of the Patient.
  340         3. Any consulting or testifying expert employed
  341         by or on behalf of (name of health care provider to
  342         whom presuit notice was given) and his/her/its
  343         insurer(s), self-insurer(s), or attorney(s) regarding
  344         the matter of the presuit notice accompanying this
  345         authorization.
  346         4. Any attorney (including his/her secretarial,
  347         clerical, or paralegal staff) employed by or on behalf
  348         of (name of health care provider to whom presuit
  349         notice was given) or employed by or on behalf of any
  350         health care provider(s) listed in subsections B.1.-2.
  351         above, regarding the matter of the presuit notice
  352         accompanying this authorization or the care and
  353         treatment of the Patient.
  354         5. Any trier of the law or facts relating to any
  355         suit filed seeking damages arising out of the medical
  356         care or treatment of the Patient.
  357         E. This authorization expressly allows the
  358         persons or class of persons listed in subsections
  359         D.2.-4. above to interview the health care providers
  360         listed in subsections B.1.-2. above, without the
  361         presence of the Patient or the Patient’s attorney.
  362         F.E. This authorization expires upon resolution
  363         of the claim or at the conclusion of any litigation
  364         instituted in connection with the matter of the
  365         presuit notice accompanying this authorization,
  366         whichever occurs first.
  367         G.F. The Patient understands that, without
  368         exception, the Patient has the right to revoke this
  369         authorization in writing. The Patient further
  370         understands that the consequence of any such
  371         revocation is that the presuit notice under s.
  372         766.106(2), Florida Statutes, is deemed retroactively
  373         void from the date of issuance, and any tolling effect
  374         that the presuit notice may have had on any applicable
  375         statute-of-limitations period is retroactively
  376         rendered void.
  377         H.G. The Patient understands that signing this
  378         authorization is not a condition for continued
  379         treatment, payment, enrollment, or eligibility for
  380         health plan benefits.
  381         I.H. The Patient understands that information
  382         used or disclosed under this authorization may be
  383         subject to additional disclosure by the recipient and
  384         may not be protected by federal HIPAA privacy
  385         regulations.
  386  
  387         Signature of Patient/Representative: ....
  388         Date: ....
  389         Name of Patient/Representative: ....
  390         Description of Representative’s Authority: ....
  391         Section 5. Paragraph (c) of subsection (7) of section
  392  381.028, Florida Statutes, is amended to read:
  393         381.028 Adverse medical incidents.—
  394         (7) PRODUCTION OF RECORDS.—
  395         (c)1. Fees charged by a health care facility for copies of
  396  records requested by a patient under s. 25, Art. X of the State
  397  Constitution may not exceed the reasonable and actual cost of
  398  complying with the request, including a reasonable charge for
  399  the staff time necessary to search for records and prevent the
  400  disclosure of the identity of any patient involved in the
  401  adverse medical incident through redaction or other means as
  402  required by the Health Insurance Portability and Accountability
  403  Act of 1996 or its implementing regulations. The health care
  404  facility may require payment, in full or in part, before acting
  405  on the records request.
  406         2. Fees charged by a health care provider for copies of
  407  records requested by a patient under s. 25, Art. X of the State
  408  Constitution may not exceed the amount established under s.
  409  456.057(17) s. 456.057(18), which may include a reasonable
  410  charge for the staff time necessary to prevent the disclosure of
  411  the identity of any patient involved in the adverse medical
  412  incident through redaction or other means as required by the
  413  Health Insurance Portability and Accountability Act of 1996 or
  414  its implementing regulations. The health care provider may
  415  require payment, in full or in part, before acting on the
  416  records request.
  417         Section 6. (1) The amendments made by this act to ss.
  418  456.057, 766.106, and 766.1065, Florida Statutes, apply to
  419  causes of action accruing before, on, or after the effective
  420  date of this act.
  421         (2) The amendments made by this act to s. 766.102, Florida
  422  Statutes, apply to causes of action accruing on or after the
  423  effective date of this act.
  424         Section 7. This act shall take effect July 1, 2013.