           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4634
                  _____________________________

SHANDS JACKSONVILLE MEDICAL
CENTER, INC.,

    Petitioner,

    v.

EARTHA PUSHA, as personal
representative of the estate of
Regina Samone Freeman,

    Respondent.
                  _____________________________


Petition for Writ of Certiorari—Original Jurisdiction.

                         August 24, 2018


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.

       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




                                2
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.



    1 Pusha was not appointed as personal representative of
Freeman’s estate until more than twenty-two months later, on
October 8, 2012.

                                 3
          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 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.




                                 4
                          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

                                 5
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
supports the order, then the trial court has departed from the
essential requirements of the law. See C.O. v. State, 203 So. 3d
200, 200 (Fla. 5th DCA 2016) (holding that when competent,
substantial evidence fails to support the trial court’s finding
regarding competency, the trial court has departed from the
essential requirements of the law); In re Commitment of Reilly, 970
So. 2d 453, 455 (Fla. 2d DCA 2007) (“Where competent, substantial
evidence does not support the trial court’s finding regarding
competency or involuntary commitment, the trial court has
departed from the essential requirements of the law.”).

     Here, we must determine whether competent, substantial
evidence supports the trial court’s order denying the motion to
dismiss. Specifically, we must determine whether Pusha was
permitted to proceed with her lawsuit without obtaining a presuit
written expert report corroborating her claims based on a finding
that Shands waived entitlement to the report by not immediately
producing Freeman’s medical records in response to Pusha’s
requests. Although the trial court did not make specific findings,
we conclude that the trial court found that at least one of the
records requests made by Pusha before July 2011 was adequate to
trigger Shands’ obligation to produce Freeman’s medical records.

     Pusha made two concessions that narrow the scope of our
review. First, she conceded that the December 2010 letter was not
a formal request for medical records under the Medical
Malpractice Act because it did not reference chapter 766. Second,
she conceded that Shands timely responded to her July 2011
request for records. Consequently, our review centers on the April
2011 request for medical records and whether the request was
sufficient to require Shands to produce the records.




                                 6
              III. THE MEDICAL MALPRACTICE ACT

     Before filing a medical negligence action, a claimant must
comply with the presuit requirements of the Medical Malpractice
Act. See Gordon v. Shield, 41 So. 3d 931, 933 (Fla. 4th DCA 2010)
(recognizing that the Act creates a complex presuit investigation
procedure that both claimants and defendants must follow). One
of the requirements is for the claimant to investigate whether
there are reasonable grounds to believe that a defendant named in
the suit provided negligent care or treatment and that such
negligence resulted in an injury to the claimant. § 766.203(2), Fla.
Stat. (2011). In order to assist a claimant with reviewing the
merits of her potential claim, section 766.204(1), Florida Statutes
(2011), requires copies of medical records to be turned over to “a
claimant or a defendant, or to the attorney therefore.”

     Once a claimant has undertaken the investigation required by
the Act and before filing suit, the claimant must submit a verified
written medical expert opinion to corroborate that there are
reasonable grounds to support the claim of medical negligence. §
766.203(2), Fla. Stat. (2011). However, this requirement may be
waived if a defendant fails to timely comply with a claimant’s
request for medical records. See § 766.204(2), Fla. Stat. (2011);
Martin Mem’l Med. Ctr., Inc. v. Herber, 984 So. 2d 661, 664 (Fla.
4th DCA 2008) (holding that the failure of a hospital to timely
comply with a request for medical records results in a waiver of the
requirement for a claimant to file a corroborating medical
affidavit); Watson v. Beckman, 695 So. 2d 436, 437 (Fla. 3d DCA
1997) (holding that the requirement to file a verified corroborating
expert opinion was waived by the defendant’s failure to comply
with a records request); Escobar v. Olortegui, DDS, 662 So. 2d 1361
(Fla. 4th DCA 1995) (holding that failure to provide copies of a
plaintiff’s medical records waived the necessity of filing a
corroborating affidavit). Although Florida courts construing
section 766.204(2) in some cases have found waiver of the right to
the presuit written corroborating expert opinion, it has done so
only where the defendant has wholly failed to produce records in
response to a claimant’s request. See, e.g., Watson, 695 So. 2d at
437 (healthcare provider completely failed to produce records, but
plaintiff cured the presuit deficiency by obtaining the
corroborating expert affidavit before the statute of limitations

                                 7
ran); Escobar, 662 So. 2d at 1364 (healthcare provider’s failure to
produce medical records waived right to the corroborating expert
affidavit).

     Here, Shands did not refuse to produce Freeman’s medical
records, rather it sought to verify that Pusha and/or Teague were
claimants or were otherwise legally authorized to receive
Freeman’s records before producing them. A claimant is defined
as “any person who has a cause of action for damages based on
personal injury or wrongful death arising from medical
negligence.” § 766.202(1), Fla. Stat. (2011). And pursuant to
Florida’s Wrongful Death Act, only a properly designated personal
representative may bring a lawsuit for wrongful death. § 768.20
Fla. Stat. (2011). The April 2011 letter requesting Freeman’s
medical records did not clearly identify Pusha or Teague as
claimants or as persons legally authorized to receive Freeman’s
medical records. In fact, the letter only served to confuse the issue.
The letter did not identify Pusha as Freeman’s mother or next of
kin. Further, although records may be released to an attorney for
a claimant, the letter did not clearly identify that the person who
was requesting the records was Fenster’s client. Pusha was
identified as a client of the firm, but Teague, who signed the
authorization form, was not so identified. In response, Shands did
not refuse to produce the records. Instead, Shands sought to
determine whether Pusha and/or Teague were authorized to
receive Freeman’s medical records, and asked for a copy of a power
of attorney or a copy of Freeman’s death certificate before
producing the records.

     Pusha argues that the plain language of section 766.204
contains no requirement that a person requesting records
demonstrate their legal authority to receive the records. Nor does
the statute expressly authorize a hospital to seek to verify that the
person requesting confidential medical records is legally
authorized to receive the records before producing them. Thus,
Pusha argues that the statute requires only that a person
requesting a patient’s medical records make a request, and
without more, the hospital is obligated to produce the records. We
reject this argument for two reasons: first, this construction of
section 766.204 is inconsistent with the high degree of protection
given to confidential medical records under Florida law; and

                                  8
second, to the extent that Florida’s protection of confidential
medical records under section 766.204 is less stringent than
HIPAA, section 766.204 is preempted.

   A. Florida’s Laws Protecting the Privacy of Medical Records

     Florida law prohibits the disclosure of confidential medical
records without valid authorization. An authorization for the
release of a person’s confidential medical records is valid only if
made by the patient or his or her legal representative. §
395.3025(4), Fla. Stat. (2011). Section 395.3025(1), Florida
Statutes (2011), provides the following guidelines for obtaining
medical records:

    Any licensed facility shall, upon written request, and only
    after discharge of the patient, furnish, in a timely
    manner, without delays for legal review, to any person
    admitted therein for care and treatment or treated
    thereat, or to any such person’s guardian, curator, or
    personal representative, or in the absence of one of those
    persons, to the next of kin of a decedent or the parent of a
    minor, or to anyone designated by such person in writing,
    a true and correct copy of all patient records, including X
    rays, and insurance information concerning such person,
    which records are in the possession of the licensed
    facility, provided the person requesting such records
    agrees to pay a charge.

(emphasis added).

    Pusha’s request for Freeman’s medical records is deficient
under section 395.3025(1) because it does not demonstrate that
Pusha and/or Teague were legally authorized to act as Freeman’s
guardian, curator, or personal representative. 2 The request was



    2 To the extent that Pusha relies on the deposition testimony
of Jeffery Fenster, Pusha’s original attorney, indicating that a
death certificate was sent to Shands as an attachment to the April
11, 2011, letter, this reliance is misplaced. The record reflects that
Fenster did not receive the death certificate until April 15; thus, it
                                  9
not accompanied by a copy of Freeman’s death certificate, so it was
unclear that Teague, who was identified as Freeman’s daughter,
could request the records as Freeman’s next of kin. Instead, the
request served to create confusion about the identity of the firm’s
client(s). On the one hand, the caption of the letter indicated that
it was seeking Freeman’s records on behalf of its client, Pusha. On
the other hand, the enclosed authorization form to release the
medical records was signed by Teague, a person not identified in
the letter as a client of the firm. Because the request for Freeman’s
medical records did not include a valid authorization for their
release, the request failed to comply with section 395.3025(1), and
Shands was prohibited from releasing the records.

     The protection for confidential medical records is not provided
only by statute; the Florida Constitution also extends additional
protections in connection with the right to privacy. Weaver v.
Myers, 229 So. 3d 1118, 1126 (Fla. 2017) (recognizing that the right
to privacy in the Florida Constitution applies to medical records).
The supreme court recently held that the right to privacy provides
protection for a patient’s medical records even after the patient’s
death:

    Death does not retroactively abolish the constitutional
    protections for privacy that existed at the moment of
    death. To hold otherwise would be ironic because it would
    afford greater privacy rights to plaintiffs who survived
    alleged medical malpractice while depriving plaintiffs of
    the same protections where the alleged medical
    malpractice was egregious enough to end the lives of
    those plaintiffs.

Id. at 1127-28. In light of this strong protection for the
confidentiality of medical records under other provisions of Florida
law, a hospital cannot be deemed to have failed to comply with
section 766.204(2) simply by seeking to verify that the person
requesting disclosure of another’s confidential medical records is
the legal representative of the person whose records have been


could not have been sent to Shands when Pusha sent the April 11,
2011, request for medical records.

                                 10
requested. A contrary rule would allow any person to identify
themselves as a “claimant” or the patient’s legal representative
and thereby demand and receive records from a hospital. Such a
rule would undermine Florida’s statutory and constitutional
protections for the privacy of confidential medical records.

                            B. HIPAA

     But even if Pusha’s request for Freeman’s medical records was
sufficient under section 766.204(1), and complied with Florida’s
laws protecting the confidentiality of medical records, Shands was
also required to comply with HIPAA and could not produce
Freeman’s confidential medical records without a valid
authorization form.

     The disclosure of confidential medical records by healthcare
providers is heavily regulated by HIPAA. See Murphy v. Dulay,
768 F.3d 1360, 1368-69 (11th Cir. 2014). HIPAA was enacted in
recognition of the strong privacy interest a patient has in her
personal health information. OPIS Mgmt. Res., LLC v. Sec’y, Fla.
Agency for Health Care Admin., 713 F.3d 1291, 1294-95 (11th Cir.
2013). Subject to certain exceptions not applicable here, HIPAA
expressly prohibits the disclosure of medical records without valid
written authorization. 45 C.F.R. § 164.508(a)(1). To be valid, the
authorization must be completed by someone legally authorized to
receive the records. OPIS Mgmt. Res., 713 F.3d at 1295.

     The April 2011 letter does not comply with the requirements
of HIPAA. Nothing in the letter identifies Pusha and/or Teague as
persons legally authorized to receive the records and no power of
attorney was attached. The letter merely asserts that they are
Freeman’s personal representatives. It is never asserted that
Freeman is deceased, and her death certificate was not attached to
the letter. Neither Teague nor Pusha had been appointed personal
representatives of Freeman’s estate. Thus, the authorization form
signed by Teague was not valid authorization under HIPAA. 45
C.F.R. § 164.508(c)(1)(vi) (“If the authorization is signed by a
personal representative of the individual, a description of such
representative’s authority to act for the individual must also be
provided.”).


                                11
     Pusha brushes away Shands’ arguments that it was required
to comply with HIPAA before disclosing Freeman’s medical
records, arguing that the hospital could not be held liable for
improper disclosure of medical records pursuant to section
766.204(3), Florida Statutes (2011). That statute contains the
following hold harmless provision purporting to release a hospital
from civil damages for claims for releasing medical records
required by the statute: “A hospital shall not be held liable for any
civil damages as a result of complying with this section.” But
Pusha’s argument misses the point. Even if section 766.204(3)
could immunize a hospital that improperly released confidential
medical records from a lawsuit filed under state law seeking civil
damages, nothing in that provision would shield a hospital from
federal prosecution if the hospital released the records in violation
of HIPAA. See 42 U.S.C. § 1320d-6(b) (authorizing up to ten years’
imprisonment for the wrongful disclosure of individually
identifiable health information).

     Further, to the extent that section 766.204(3) could be
construed to permit disclosure of confidential medical records
without a valid authorization, it would be preempted by HIPAA.
Although HIPAA does not preempt all state laws relating to the
privacy of personal health information and medical records, it does
preempt those state laws “which are less stringent than HIPAA’s
privacy protections.” Paylan v. Fitzgerald, 223 So. 3d 431, 434
(Fla. 2d DCA 2017). An interpretation of section 766.204(3) that
would permit disclosure of confidential medical records without a
valid authorization necessarily affords less stringent protections to
a patient’s privacy than does HIPAA.

     Under Pusha’s construction of section 766.204(3), a hospital
would be forced to navigate between Scylla and Charybdis in
deciding whether to produce records in a presuit investigation or
to comply with state and federal laws governing the privacy of
confidential medical records. If the hospital attempted to verify
the legal status of the person requesting the medical records, it
would forfeit its right to require a potential claimant to seek an
expert medical opinion to corroborate her claim. If the hospital
produced the medical records without verifying the legal status of
the requestor, it could face criminal prosecution under HIPAA. We
hold that section 766.204 does not require Shands to face such a

                                 12
dilemma. When a hospital receives a request to produce medical
records in a presuit investigation, it may verify the legal status of
the person requesting the records to determine whether they are a
claimant under section 766.206, and also take those steps
necessary to comply with the requirements of HIPAA and state
laws limiting disclosure of confidential medical records.

                          IV. CONCLUSION

     The trial court departed from the essential requirements of
law when it concluded that Shands was required to produce
Freeman’s confidential medical records in response to Pusha’s
incomplete and conflicting requests. Shands did not receive a valid
authorization for the release of the records, so it was not required
to produce the records. Because Shands did not wholly refuse to
produce the records, Pusha was required to obtain a written
medical expert opinion corroborating her claim before she filed
suit. But because Pusha never obtained such an opinion and the
statute of limitations has expired, her complaint must be
dismissed with prejudice. 3 Accordingly, we grant Shands’ petition
for writ of certiorari and quash the order below.

    GRANTED.

B.L. THOMAS, C.J., and M.K. THOMAS, J., concur.




    3  In September 2011, after it had produced all of Freeman’s
medical records, Shands put Pusha on notice of its argument that
the hospital had not failed to produce records and thus had not
waived the requirement for Pusha to provide a written medical
expert opinion corroborating her claim before she filed suit.
Nonetheless, Pusha chose not to cure this deficiency in the presuit
process before she filed suit nine months later, or before the statute
of limitations ran on her claim almost two years later, in 2013.

                                 13
                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


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.




                              14
