Bill Text: FL S1308 | 2013 | Regular Session | Introduced


Bill Title: Medical Negligence Actions

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2013-05-03 - Died in Judiciary, companion bill(s) passed, see SB 1792 (Ch. 2013-108) [S1308 Detail]

Download: Florida-2013-S1308-Introduced.html
       Florida Senate - 2013                                    SB 1308
       
       
       
       By Senator Lee
       
       
       
       
       24-00794B-13                                          20131308__
    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.
   25  
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   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
   43  consent.
   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
   52  records.
   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
   62  law.
   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.
   80  766.1065.
   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
   87  insurer.
   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.
  131  766.204.
  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
  171  information.—
  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:
  176  
  177                    AUTHORIZATION FOR RELEASE OF                   
  178                    PROTECTED HEALTH INFORMATION                   
  179  
  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
  190         purposes:
  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.
  218  
  219         (List the name and current address of such health care
  220         providers, if applicable.)
  221  
  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.
  229  
  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.”)
  234  
  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
  238         used:
  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
  252         authorization.
  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
  269         attorney.
  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
  293         regulations.
  294  
  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.

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