Authorization for Release of Protected Health Information

As addressed in our Presuit Requirements page, “[p]resuit notice of intent to initiate litigation for medical negligence under s. 766.106(2) must be accompanied by an authorization for release of protected health information in the form specified by this section.” § 766.1065(1). Failure to comply with this is fatal. Id. (“The presuit notice is void if this authorization does not accompany the presuit notice and other materials required by s. 766.106(2).” Even if you comply and later revoke your authorization, the presuit notice is “deemed retroactively void from the date of issuance, and any tolling effect that the presuit notice may have had on any applicable statute-of-limitations period is retroactively rendered void.” §766.1065(2).)

Section 766.1065(3) provides the statutory form:

AUTHORIZATION FOR RELEASE OF

PROTECTED HEALTH INFORMATION

A. I, (Name of patient or authorized representative) [hereinafter “Patient”], authorize that (Name of health care provider to whom the presuit notice is directed) and his/her/its insurer(s), self-insurer(s), and attorney(s), and the designated treating health care provider(s) listed below and his/her/its insurer(s), self-insurer(s), and attorney(s) may obtain and disclose (within the parameters set out below) the protected health information described below for the following specific purposes:

1. Facilitating the investigation and evaluation of the medical negligence claim described in the accompanying presuit notice;

2. Defending against any litigation arising out of the medical negligence claim made on the basis of the accompanying presuit notice; or

3. Obtaining legal advice or representation arising out of the medical negligence claim described in the accompanying presuit notice.

B. The health information obtained, used, or disclosed extends to, and includes, verbal health information as well as written health information and is described as follows:

1. The health information in the custody of the following health care providers who have examined, evaluated, or treated the Patient in connection with injuries complained of after the alleged act of negligence: (List the name and current address of all health care providers). This authorization extends to any additional health care providers that may in the future evaluate, examine, or treat the Patient for the injuries complained of.

2. The health information in the custody of the following health care providers who have examined, evaluated, or treated the Patient during a period commencing 2 years before the incident that is the basis of the accompanying presuit notice.

(List the name and current address of such health care providers, if applicable.)

C. This authorization does not apply to the following list of health care providers possessing health care information about the Patient because the Patient certifies that such health care information is not potentially relevant to the claim of personal injury or wrongful death that is the basis of the accompanying presuit notice.

(List the name of each health care provider to whom this authorization does not apply and the inclusive dates of examination, evaluation, or treatment to be withheld from disclosure. If none, specify “none.”)

D. The persons or class of persons to whom the Patient authorizes such health information to be disclosed or by whom such health information is to be used:

1. Any health care provider providing care or treatment for the Patient.

2. Any liability insurer or self-insurer providing liability insurance coverage, self-insurance, or defense to any health care provider to whom presuit notice is given, or to any health care provider listed in subsections B.1.-2. above, regarding the care and treatment of the Patient.

3. Any consulting or testifying expert employed by or on behalf of (name of health care provider to whom presuit notice was given) and his/her/its insurer(s), self-insurer(s), or attorney(s) regarding the matter of the presuit notice accompanying this authorization.

4. Any attorney (including his/her staff) employed by or on behalf of (name of health care provider to whom presuit notice was given) or employed by or on behalf of any health care provider(s) listed in subsections B.1.-2. above, regarding the matter of the presuit notice accompanying this authorization or the care and treatment of the Patient.

5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or *treatment of the Patient.

[The following paragraph has been stricken by Weaver v. Myers, 229 So. 3d 1118, 1141 (Fla. 2017).] E. This authorization expressly allows the persons or class of persons listed in subsections D.2.-4. above to interview the health care providers listed in subsections B.1.-2. above, without the presence of the Patient or the Patient’s attorney.

F. This authorization expires upon resolution of the claim or at the conclusion of any litigation instituted in connection with the matter of the presuit notice accompanying this authorization, whichever occurs first.

G. The Patient understands that, without exception, the Patient has the right to revoke this authorization inwriting. The Patient further understands that the consequence of any such revocation is that the presuit notice under s. 766.106(2), Florida Statutes, is deemed retroactively void from the date of issuance, and any tolling effect that the presuit notice may have had on any applicable statute-of-limitations period is retroactively rendered void.

H. The Patient understands that signing this authorization is not a condition for continued treatment, payment, enrollment, or eligibility for health plan benefits.

I. The Patient understands that information used or disclosed under this authorization may be subject to additional disclosure by the recipient and may not be protected by federal HIPAA privacy regulations.

Signature of Patient/Representative:

Date:

Name of Patient/Representative:

Description of Representative’s Authority:

As referenced above, the Florida Supreme court struck section “E.” Weaver v. Myers, 229 So. 3d 1118, 1141 (Fla. 2017) (“First, we strike in its entirety section 766.1065(3)E., Florida Statutes (2013), which contains the constitutionally infirm language: ‘This authorization expressly allows the persons or class of persons listed in subsections D.2.–4. above to interview the health care providers listed in subsections B.1.–2. above, without the presence of the Patient or the Patient’s attorney.’”)

If you or anyone you know needs a lawyer to seek justice in a medical malpractice case, please call us at 754-400-5150 or contact us online. Let the Law Offices of Evan M. Rosen serve you!