How to collect medical records on a Florida Free Kill




Greetings,


My name is Philip. I’ve only recently discovered the Florida Medical Rights group, thanks to an attorney who used the term “Florida’s Free Kill Law” while we were having a conversation. Yes, like so many others here, he declined to take my case. However, he did spend a great deal of time with me on the phone discussing Chapter 768.21(8).



Melody has invited me to write some articles addressing the issue of medical malpractice/negligence and how the Florida Legislature, Governor, and the Supreme Court of Florida have discriminated against certain people who live in or travel to the Sunshine State. Though she and I share the same goal of seeing the above-mentioned law repealed, our approach to accomplishing that goal differs in some ways. Since the Legislature is currently not in session--which in my view is always a good thing--this seems like the opportune time to address some of the ways in which I believe Chapter 768.21(8) can become a distant nightmare. Some of these ideas will be new to you and will require some work on your part, but everything in life that’s worth doing requires some effort and sacrifice.


I suppose a brief introduction regarding my education is in order. I began my medical education when I joined the US Navy in 1980. After basic training (Bootcamp), I completed Hospital Corps School, then went to Camp LeJeune, NC, where I completed my training in battlefield medicine, then to the US Navy Hospital in Bethesda, MD. There, I worked in the Critical Care specialties doing the work you would see RNs do in civilian hospitals. Not all military training directly translates to the civilian sector. After several years working in the Intensive Care Unit, I chose to further my education in the field of organ and tissue transplantation.


After my service commitment was complete, I took a short break from the medical profession to get used to the civilian world again. I eventually moved to Nashville, TN, and was hired by the local Organ Donor Program. As a Transplant Coordinator, I found myself working closely with the State Medical Examiner’s Office and gained a great deal of knowledge in the Forensic Sciences. I have a unique skill set in being able to review medical records and extract critical pertinent information with regard to medical history, disease processes, diagnostic and treatment procedures, as well as factors leading to a cause of death. This knowledge served me well in reviewing my mother’s medical records to find out what happened to her in the hospital where she was injured and later succumbed to those injuries.


After retiring from the medical field, I also became interested in the study of American history, government, and law, subjects I never learned in school, yet impacted my daily life. Over the past 27 years, these areas of study have occupied my time and have served me well in taking on local and state issues where I see overreach by the government. Through these studies, I have been successful in challenging some of the obstacles I’ve encountered since my mother’s death two years ago. I plan to share some of what I have learned about the way our government was designed to function and how we might employ that knowledge to seek justice for our loved ones who have fallen victim to Florida’s Free Kill Law.


There is no way to impart everything I have learned over the past 27 years in just one blog post. So, I plan to write a series of articles and share them one at a time. The first one I am going to write deals with obtaining medical records after a loved one has passed away. Melody explained to me that some hospitals in Florida are refusing to honor these requests, giving family members even more problems to deal with. After that, I want to address several ways in which Chapter 768.21(8) can be repealed. Begging the Legislature to hear us is not the only way to make this happen, but it will require some work.


Looking forward to getting to know you all.


Respectfully,


Philip



 


In a recent phone conversation, Melody mentioned to me that some Florida Free Kill families have run into roadblocks when trying to obtain a copy of their loved one’s medical records.


Honestly, I was stunned to hear that. When my mother died in the State of Florida two years ago, I ran into some delays getting the hospital to comply with the law, but eventually they did. So, Melody asked if I could write a short article addressing the State and Federal laws governing access to medical records.


For more information on what you need to do when you’ve lost a loved one and you suspect medical malpractice, please click here to read a comprehensive article Melody wrote in April of 2017. In this article, she covers some of the same topics I will address here, but the information is so important it deserves to be revisited.


So why do you need a medical record if you are barred from filing a malpractice claim pursuant to Florida’s Chapter 768.21(8)? Well, what other way are you going to get the evidence you need to make an argument that a doctor, nurse, or other medical practitioner did something which led to your loved one’s death? Please keep in mind that even though you allege medical malpractice/negligence, you still must prove it. As Melody points out in the article linked above, there are other agencies in the state of Florida, where complaints against hospitals and their employees can be filed. Some of these include the Agency for Health Care Administration (AHCA), the Florida Department of Children and Families (DCF), and Adult Protective Services (APS), to name a few. Though filing a complaint with these departments will not get you past Chapter 768.21(8), it will serve to create a documented paper-trail to help abolish that law in the future. Further, it will help you build a case against a health care worker who needs to be removed from the profession of medicine and patient care. More on that later.

The short answer is yes, you do have a legally protected right at both the State and Federal levels to request and obtain your medical records, or those of a loved one, in the state of Florida. However, you must meet certain criteria. The Florida statute governing access to medical records specifies that ALL medical records must be provided upon request.


Do not accept a summary of the record. Demand the entire record as provided for in the statute. However, there is one exception. If requesting a psychiatric record, Florida law provides for “the health care practitioner [Psychiatrist] may provide a report of examination and treatment in lieu of copies of records.” (See Title XXXII, Section 456.057(6)). As well, the health care provider is required by both State and Federal law to provide those records to you within a certain time limit, generally 30 days. However, as mentioned above, there are some rules you must follow which, in this case, is a good thing. I’ll spell out those rules below.


The first roadblock you may encounter will no doubt be the person who answers the phone during your initial attempt to obtain your loved one’s record. This person will not stop to consider your current situation, e.g., that you just lost your mother, father, or child. To them, you’re just another voice on the phone. Don’t let this discourage you. The law is on your side, and you will prevail. This is where it will be helpful to be prepared beforehand with all the required documentation you need to prove that you are legally entitled to those records. I suggest doing everything in writing. Again, this allows you to document, document, document. If you do need to speak with someone on the phone, follow up your call with an email or letter reiterating what transpired during your call. On the request form, they provide to you, be sure to check all the boxes for all the records. If they don’t send you everything you request, they have violated the law. Document it, then make another request, this time reminding them that they are under a legal time constraint to give you what you asked for.


Who has the legal authority to obtain another person’s medical record after a death? Every State has a defined hierarchy—though most are similar—designating who is the legal “next of kin,” or, in legal terms, “heirs at law.” In the state of Florida, that hierarchy flows like this:

  1. Spouse

  2. Children (descendants of decedent)

  3. Parents

  4. Siblings

  5. Grandparents

  6. Uncles and Aunts

  7. Kindred of last deceased spouse

  8. Holocaust survivors, if any, descended from decedent’s great grandparents.


You can read more to do with the next of kin theory here


This list of relatives is followed if you, or a court of law, have not already named someone to be your Personal Representative or Power of Attorney. The same holds true for your loved ones. However, if you have designated someone to be your Power of Attorney or Personal Representative, then the list above will be moot. If a loved one dies “intestate” or “intestacy,” meaning they died without a legal will, then an estate must be established, and a Personal Representative named. Therefore, it is important to have all of this worked out beforehand. The sooner you get those medical records, the less chance there is for something to happen to them.


The Florida Statute governing who can request a medical record states (see Florida Statute XXXII, Section 456.057(6)):


“Any health care practitioner licensed by the department [of health] or a board within the department [of health] who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person shall, upon request of such person or the person’s legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, including X rays and insurance information.” [Emphasis added] The compelling phrase here is “shall, upon request of such person or the person’s legal representative.” The word “shall” means they must, by law, honor the request. Further, the statute goes on to say, “The furnishing of such report or copies shall not be conditioned upon payment of a fee for services rendered.” In other words, the doctor’s office, hospital, or medical records department cannot demand payment for services before providing the requested records. This puts you in the driver’s seat, but you are required by law to pay them for copying and mailing the records to you. You can read the entire text of the statute here.


NOTE: Sadly, Florida law establishes that the actual medical record belongs to, or is owned by, the healthcare provider. However, that provider must provide you with a copy if you are legally allowed to ask for it. Personally, I would like to see that law overturned as well, but that’s a discussion for another time. Further, the health care provider is the health care provider is permitted to charge “reasonable copying fees” which are outlined in Florida Administrative Code 64B8-10.003. In general, a healthcare provider may charge no more than $1.00 per page for the first 25 pages, and no more than $0.25 per page for anything more than 25 pages. Hospitals, on the other hand, are allowed to charge $1.00 per page regardless of the number of pages.


NOTE: In the case of my mother’s death, the medical record covering a 15-day hospital stay was 1,588 pages, plus additional pages for the specific Incident Report that led to her death. The total cost for these records was $6.98 because I requested the record as I described above.


The best way to keep your cost down is to request a digital copy of the record to be provided in the PDF format on a Flash-drive (USB Drive). You can also provide the records department with the USB Drive yourself so that they won’t be able to charge you more than you would pay for the drive at an office supply store. I would discourage requesting a printed copy of the records because you may need to make more copies at a later date. It will cost next to nothing if you have a digital copy of the record and print off what you might need to share.


On the Federal level, the “Health Insurance Portability and Accountability Act,” also known as HIPAA, protects your right to not only obtain a copy of these medical records, but also to amend (correct) the record. Please visit the following link for more information:

https://www.hhs.gov/hipaa/for-individuals/medical-records/index.html


Back in the days when I worked as a Transplant Coordinator, I was continually amazed by how many people never discuss their desire for organ or tissue donation with their family members. I used to think to myself how strange it is that people make a point to plan their education, their wedding, their career, whether to have children or not, where to go on vacation, but when it comes to planning how their family should handle their affairs at the time of their death, few people did so. Now, because we have found ourselves in the Twilight Zone known as Chapter 768.21(8), I can’t urge you enough to name a Personal Representative or Power of Attorney so that your loved one will have the legal authority to make demands when they need to. No, this will not automatically mean that you can file a medical malpractice claim in the state of Florida. However, it will give your family members the evidence they need to begin the process of holding those responsible who were negligent with your care. I’ll address this issue in another article because there are things that can and should be done to hold negligent parties accountable for their actions.


In closing, I will share some tips I have learned from mistakes I made. Remain calm and collected when dealing with the keepers of your loved one’s medical records. Politeness with get you much further than creating an enemy of the Gatekeeper. A $10/hour medical records employee can cause you a lot of stress and heartache. Document everything. As we continue to work toward repealing Chapter 768.21(8), you never know which piece of evidence might persuade a judge or lawmaker to see things our way. Find someone who understands the language of medicine to help you translate all of the medical jargon into something the layman can understand.


Respectfully submitted,


Philip