Shands Jacksonville Med. Ctr., Inc. v. Pusha, 1D17-4634

• Decision Date: 24 August 2018
• Docket Number: No. 1D17-4634,1D17-4634
• Citation: 254 So.3d 1076
• Parties: SHANDS JACKSONVILLE MEDICAL CENTER, INC., Petitioner, v. Eartha PUSHA, as personal representative of the estate of Regina Samone Freeman, Respondent.
• Court: Florida District Court of Appeals

254 So.3d 1076

SHANDS JACKSONVILLE MEDICAL CENTER, INC., Petitioner,
v.
Eartha PUSHA, as personal representative of the estate of Regina Samone Freeman, Respondent.

No. 1D17-4634

District Court of Appeal of Florida, First District.

August 24, 2018

Christine Davis Graves of Carlton Fields, Tallahassee, for Petitioner.

Ronald S. Gilbert and Vanessa L. Brice of Colling Gilbert Wright & Carter, LLC, Orlando; Rebecca Bowen Creed of Creed & Gowdy, P.A., Jacksonville, for Respondent.

Rowe, J.

Shands Jacksonville Medical Center, Inc. seeks a writ of certiorari to review an order denying its motion to dismiss Eartha Pusha's medical malpractice complaint. Pusha alleged that Shands' negligent treatment of Pusha's mother, Regina Freeman, resulted in Freeman's death. Shands argued that Pusha's suit should be dismissed because of her failure to comply with the Medical Malpractice Act by obtaining a verified written medical expert opinion corroborating her claims before she filed suit. Pusha countered that Shands waived this presuit requirement when it failed to respond to her requests for Freeman's medical records. Shands argued that no waiver occurred because the hospital did not refuse to produce Freeman's records, but rather asked for additional information to ensure that the persons seeking Freeman's confidential medical records were legally authorized to receive the records. The trial court denied Shands' motion to dismiss, concluding that Shands waived its entitlement to an expert opinion by failing to produce Freeman's medical records in response to Pusha's requests.

The question before this Court is: During the course of the presuit investigation authorized under the Medical Malpractice Act, may a hospital seek verification that a person requesting confidential medical records is legally authorized to obtain those records? For the reasons that follow, we answer the question in the affirmative, and grant the petition.

I. BACKGROUND

In September 2010, Regina Freeman was experiencing heart problems, which led to her admission to Shands for mitral valve replacement surgery. After the surgery, Freeman was transferred to the cardiovascular intensive care unit for post-surgical monitoring. While in the ICU, she experienced ventral fibrillation and was returned to the operating room. Freeman never regained consciousness and remained on life support for several days following the surgery. She died on October 5, 2010.

A. Pre-Suit Actions

Shortly after Freeman's death, Eartha Pusha, Freeman's mother, and/or Takara Teague, Freeman's daughter, contacted the law firm of Fenster & Cohen, P.A. about representing the family in a medical malpractice suit against Shands.

254 So.3d 1079

1. December 23, 2010 Request for Medical Records

On December 23, 2010, an attorney from the Fenster law firm sent a letter to Shands requesting Freeman's medical records. The letter identified Pusha as Freeman's personal representative.¹ The letter expressly provided that "this firm represents the above-named individual," referring only to Pusha and did not reflect that the firm represented anyone else. The letter did not indicate that Freeman was deceased or that Pusha was Freeman's mother. And the letter contained no reference to the Medical Malpractice Act.

A form purporting to authorize the release of Freeman's confidential medical records was attached to the letter. The stated purpose for requesting the records was "at the request of the individual." But the form was not signed by Pusha, the client identified in the letter. Rather, it was signed by Teague, who was identified on the form as Freeman's personal representative and daughter. Nothing on the form allowed Shands to verify that Teague was in fact Freeman's daughter or to determine whether any relationship existed between Pusha and Teague. Further, it is undisputed that neither Pusha nor Teague was a personal representative of Freeman's estate at the time the letter was sent.

Iron Mountain, Shands' contracted copy service, responded to the request on January 8, 2011. Iron Mountain informed Pusha's counsel that Shands could not provide the requested records because the authorization form enclosed with her letter did not comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as it did not include a valid power of attorney authorizing the release of Freeman's medical records.

Jeffery Fenster, in his deposition, asserted that his staff "probably" contacted Shands after receipt of the response to his records request and "probably explained to them" that Freeman was deceased and thus no power of attorney was necessary. But Fenster failed to maintain a paper file for Pusha's case, so he could not recall what actually transpired. Instead, he testified only to his firm's general practice.

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. Otherwise, the April letter was virtually identical to the December letter. Pusha was identified as the client and personal representative of Freeman's estate. Attached to the letter was an authorization form signed by Teague, who purported to be the personal representative and daughter of Freeman. Again, nowhere in the letter was Teague identified as a client. The letter did not explain the relationship between Pusha (identified in the letter as the client) and Teague (identified on the form as the personal representative and daughter of Freeman). Nor did either the letter or form indicate that Freeman was deceased.

Shands' director of health information management, Annette Wrabel, testified that a letter was sent in response to this request informing Pusha that no records could be released without an authorization signed by the patient or a valid power of

254 So.3d 1080

attorney. Wrabel was unable to produce a copy of the letter, but she did produce a record from their log system showing a letter was sent in response to the request.

3. July 2011 Requests for Medical Records

On July 6, 2011, the Fenster law firm sent Shands a third letter requesting Freeman's medical records. Five days later, the law firm faxed the same authorization form attached to the two prior letters, but this time he also included a copy of Freeman's death certificate. Two days later, on July 11, 2011, after Shands was able to verify that Freeman was deceased and that Teague was Freeman's daughter, the hospital produced the requested medical records to the Fenster law firm.

Fenster requested additional records on July 21, 2011, which Shands produced within ten business days.

B. Complaint

On June 15, 2011, the law firm mailed a "Notice of Intent to Initiate Litigation" to Shands. The notice identified Pusha and Teague as personal representatives of Freeman's estate. Shands responded by letter dated September 26, 2011, stating that the notice was deficient because it did not contain a written medical expert opinion corroborating Pusha's claim as required by section 766.203(2), Florida Statutes (2011).

On May 24, 2012, Pusha, as personal representative of Freeman's estate, filed a complaint alleging that Shands' negligence directly led to Freeman's death. Pusha did not obtain a written medical expert opinion before she filed suit.

In 2015, Shands moved to dismiss the complaint on grounds that Pusha failed to comply with the presuit requirements of 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. Shands replied that it was not required to produce the records because the hospital could not produce Freeman's confidential medical records until it had a valid authorization to release the records.

After an evidentiary hearing, the trial court denied the motion to dismiss.

II. STANDARD OF REVIEW

A petitioner seeking certiorari relief from the denial of a motion to dismiss must demonstrate a departure from the essential requirements of the law that would result in irreparable harm that could not be corrected on direct appeal. Williams v. Oken , 62 So.3d 1129, 1132 (Fla. 2011). When a petitioner seeks certiorari relief on grounds that a plaintiff has not complied with the presuit requirements of the Medical Malpractice Act, the latter two prongs of the certiorari standard are satisfied as "[t]he statutes requiring presuit notice and screening cannot be meaningfully enforced postjudgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance." St. Joseph's Hosp., Inc. v. Doe , 208 So.3d 1200, 1201-02 (Fla. 2d DCA 2017) (citations omitted). Thus, for certiorari relief to be granted, Shands was required to show that the order denying its motion to dismiss departed from the essential requirements of the law. If no competent, substantial evidence...