If you are contemplating any type of lawsuit for personal injuries or even a claim against a healthcare provider, you need to obtain a full and complete copy of your medical records. Securing copies of your personal healthcare records is an important first step in the claims process, because when the patient has possession of his or her records, they can corroborate their injuries and/or the suspect healthcare provider will not have the opportunity to make self-serving edits to the medical records.  Further, by being in possession of your medical records, it will be easier for you to consult with medical specialists who can support your primary treating physician’s care and diagnosis/prognosis or evaluate any negligence in your prior medical care.

Sometimes, patients or clients complain that the medical office refuses to provide a copy of their records. Typical excuses include false claims that the records can only be requested by another healthcare provider, or that the records cannot be released without payment of an outstanding bill, or even that patients are not entitled to the doctor’s records.  All such excuses are inaccurate and contrary to state and federal law.

IT MUST BE NOTED:  It is against the law for any healthcare provider to refuse to provide a copy of the full and complete medical records to the subject patient.  

Your record is the physical property of medical provider. However, the patient controls the release of the information contained in the record.  In general, you must give permission for anyone, other than a member of your healthcare office, to have access to your medical record. By law, your records may be disclosed without your permission under certain circumstances such as in response to a subpoena or court order, to certain government and regulatory bodies, to someone who holds your power of attorney, to someone you have designated as your healthcare surrogate, to another healthcare provider for continued care, and to your healthcare insurer to obtain reimbursement for your care.

By law, only an adult (i.e., age 18 or older) patient or a legally designated representative has the authority to release the information contained in a medical record about them, regardless of who is paying the bills. Legally designated representatives include court-appointed guardians or others with power of attorney for the patient. For children under age 18, only a parent or court-appointed guardian may authorize release of medical information. The next of kin or personal representative of the estate may request those records.

According to Florida law, a physician is responsible for maintaining records for at least five (5) years (64B8-10.002). Because malpractice lawsuits could be brought beyond two (2) years from the date of an incident (additional years for some minors), physicians are encouraged to maintain records for a full seven years. HOWEVER, many purge their records after the five (5) year period.  Under Florida law, many healthcare providers must keep medical records for a minimum period. For example, doctors in Florida must keep medical records for at least five (5) years after their last contact with the patient. Public hospitals in Florida must keep their medical records at least seven (7) years after the patient has been discharged. In practice, many healthcare providers keep their records longer. You have a right to see, get a copy of, and amend your medical record for as long as your health care provider has it.

A federal law called the HIPAA Privacy Rule gives you the right to get and amend (correct) your medical record. HIPAA stands for the “Health Insurance Portability and Accountability Act.” Florida laws also give you rights in your medical record.

Florida Statute §456.057, among others, in Florida, patients have the right to: • See and get a copy of their medical records. Upon your request, your healthcare provider must give them a copy of their medical records in a timely manner, usually within 30 days. They must also let them see their medical record if they ask. The healthcare provider can charge the patient for copies. They can also charge for postage. • Amend their medical record by having information added to it. They have the right to have information added to their record to make it more complete or accurate. This right is called the right to amend your record. • File a complaint. They have the right to file a complaint with the Office for Civil Rights, U.S. Department of Health and Human Services if they believe your healthcare provider has violated their right to see, get a copy of, or amend their medical records. They can also file a complaint with the state agency that regulates healthcare providers. • Sue in state court to obtain their medical record. They have the right to sue in Florida local court to get a copy of their medical records.

Under Florida law, the healthcare provider owns the patient’s physical medical records. For example, if the provider maintains paper medical records, they own and have the right to keep the original records. The patient only has the right to see and get a copy of it.  In Florida, a person can designate another person (a surrogate) to make health care decisions on their behalf. If an individual is their parents’ healthcare surrogate, they generally have the right to get and amend the corresponding medical records that are relevant to making healthcare decisions on their behalf. The agent authorized by that power of attorney has this right while the subject healthcare surrogate is in effect.

You have the right to see your medical record. And again, you also have the right to get a copy of your medical record. These rights are often called the right of access to your medical records. Usually, your healthcare provider must respond to your request for your record in a timely manner, without delay for legal review. This usually means in less than 30 days. Generally, your provider must give you a copy in the format that you request if they are able to do so. You may have to pay a fee to get a copy of your record.

In a potential claim against a medical provider, Florida Statute §766.204 requires that a healthcare provider must provide a potential claimant with a full and complete copy of the relevant medical records within 10 business days (20 days for hospitals).  Although §766.204 does not require a request for records to be in writing, it is recommended creating a paper trail since it could be advantageous to do so should there be a formal claim filed in the future.

It is recommended sending a written request for records by one of the following methods:  via e-mail, with a “delivery receipt” and “read receipt” attached; via fax, with a fax delivery receipt; or, via the USPS, sent certified mail with a return receipt requested.

It should be noted that the healthcare provider is permitted to charge reasonable copying fees as mandated by Florida Administrative Code 64B8-10.003.  Specifically, 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 can charge $1.00 per page regardless of the number of pages). Ideally, it is recommended digital copies of the records be obtained whenever possible. The records should be requested in a PDF format, and it is good idea to provide an inexpensive USB drive (i.e., thumb drive) to the healthcare provider at the time of the request. Regardless of the format, the healthcare provider is entitled to reasonable copying charges as outlined above.

If you should have any questions about obtaining a copy of your medical records, please consult with the attorneys at the law firm of CASERTA & SPIRITI.

In addition to weather, beaches, a good state economy and nice people, Florida offers a beneficial legal climate for businesses and individuals looking to preserve their wealth.  If moving to the state of Florida, there are a few advantages including estate planning.

Only seven (7) states have zero state-level income tax.  One of them is Florida.  Paychecks, pensions, and Social Security income go farther. However, Florida does have other taxes (i.e., sales and hospitality taxes).  As for estate planning, Florida also does not have an estate or inheritance tax.  Although, some large Florida estates may still have to pay at the federal level, they can preserve more wealth in Florida than in states which impose a “death tax,” such as New York, New Jersey, or Pennsylvania.

Only a minority of states charge state-level estate taxes, and the state of Florida stands out since estate taxes are expressly prohibited by the state’s constitution.  Consequently, a state constitutional amendment, and not just new legislation, would be required to add an estate tax in the future.

In addition, Florida Homestead laws, which are built into the state’s constitution as well, prohibit creditors from attaching real estate that qualifies as a “homestead” under the Homestead law.  Creditors are unable to force a sale of a homestead to satisfy a judgment or to place an involuntary lien on the property.  Florida homesteads are even protected from liquidation in bankruptcy.

Many states have homestead exemptions, but Florida’s is unique in that there is no cap or no limit on the value of the protected property.  In the alternative, California, and New York limit homestead protection to about $300,000 and $85,400.  Further, Florida law does not prohibit or prevent homestead property owners from transferring funds into a homestead (e.g., through improvements or mortgage payments) to maximize the protection of their wealth.

Florida’s homestead exemption laws also benefit homestead properties with regard to real estate tax calculations.  Up to $50,000 of a residential home’s value is exempt from assessment, therefore, a home valued at $300,000 is taxed as if its value is $250,000.  A recent amendment further limits property taxes on homesteads by capping annual assessed value increases to three percent (3%) or the Consumer Price Index inflation rate, whichever is lower.  As a result, homeowners are NOT assessed large property tax increases if property values rise significantly.  The aforesaid exemption resulting from the limit on annual increases is also “portable” and can be transferred from one Florida homestead to another.

Florida asset protection laws also offer strong protections for shielding other assets against creditor claims.  Under Florida’s exemption statutes, wages earned by a head of household can be exempt from attachment.  Life insurance protections can provide that cash value stored in permanent life insurance policies are also protected against an insured person’s creditors. Retired individuals can take advantage of a benefit from Florida’s exemption for funds held in annuities, which is likewise protected from creditor claims and attachment.  There are also favorable rules for various types of Trusts, which makes it a beneficial jurisdiction if the goal is to preserve your family’s wealth in this state through multiple generations.

Under Florida law, any assets co-owned by a married couple under certain conditions are assumed to be owned as tenants by the entireties.  The laws in this state for co-ownership by spouses offer various favorable wealth management features.  First, there is a “right of survivorship,” which means when one owner dies, the other automatically (by operation of law) receives full title or ownership to the asset or property, without any need for a legal proceeding called a Probate.  Moreover, when an asset is held as tenants by the entirety, creditors of only one spouse cannot attach it.  If both spouses owe the debt, attachment may still be possible unless the asset is protected by another exemption.

Many states offer tenancy by the entirety ownership for real estate, but Florida allows it for just about any type of asset that can be jointly owned such as land, personal property, financial accounts, and even intellectual property can be co-owned as tenants by the entireties.  Furthermore, any asset in Florida held or owned as tenancy by the entireties enjoys the same protection against creditor claims.

Together with the advantages for financial planning and asset protection, Florida also provides a business-friendly legal climate that can be enticing for entrepreneurs and companies (large and small) to relocate to Florida.  Florida is among the nation’s most pro-business jurisdictions, with “right to work” and at-will employment laws.  Obviously, the absence of any state income tax can increase an existing business’s profitability and make it easier to attract capable employees.  The Florida legislature, not long ago, improved the state’s Florida LLC or Limited Liability Company laws, which assist new small businesses forming such entities. Various publications have indicated that several of the top relocation areas are in Central and South Florida.

If you are contemplating a move to Florida and want to know how Florida law might affect your personal finances or business and/or estate plan, please consult with the full-service law firm of CASERTA & SPIRITI, which has experienced and specialized attorneys together practicing a wide variety of areas of law with a practical approach to solve problems.

Driving under the influence is a charge which needs to be taken seriously here in Florida as well as across the country. There are several substances which are included in the term DUI or driving under the influence. The most common in Florida is alcohol, which is a contributing factor in more than five thousand (5,000) accidents annually. Of course, there are other substances that can result in charges of a DUI in Florida, including CBD and THC.

Each person has a legal duty to avoid driving while impaired. Anyone driving under the influence of drugs, alcohol, or medication poses a risk to others around them. The same goes for fatigued driving or distracted driving as well.

Recently, marijuana use has become more widespread across the United States. In 2012, Colorado and Washington became the first two (2) states to legalize the substance—although like alcohol, it is still illegal to drive while under the influence of marijuana.

The rapid changes in cannabis regulations, products, and services, have created new questions in this increasingly gray-area industry. Particularly, the legalization of CBD products has raised concerns among users on how this may impact them if pulled over while driving.

Questions often arise regarding marijuana (cannabis), and the substances it contains, namely THC (tetrahydrocannabinol) and CBD (cannabidiol). As CBD products become prevalent in the marketplace and cannabis becomes legal in more states, many are concerned that driving under the effects of CBD, THC, or cannabis may carry the same penalties as driving under the influence of alcohol and other drugs.

Here is a comparison of the effects of CBD versus THC cannabis one should consider:

Cannabis, commonly called marijuana, is well-known for its psychoactive effects on the human brain. These effects are the result of THC, a substance which interacts with the brain, enhancing the production of dopamine and producing a “high”.

CBD, short for Cannabidiol, is a chemical that is found in the cannabis plant (better known as marijuana). While most people automatically associate CBD with the effects of marijuana, it is not responsible for any of the stereotypical effects at all.

In medical studies, CBD has been shown to reduce stress and anxiety for people who take it. The chemical is typically used in edible forms or processed into an oil. Using CBD is non-hallucinogenic, which is why it is legal to possess the substance in thirty-four (34) states. Many people still automatically think of marijuana when they hear the term “CBD.”

Practically, it is the component THC that causes symptoms like mood changes, hallucinations, and lack of body control, which are commonly associated with marijuana use. THC, which stands for tetrahydrocannabinol, is another chemical compound found in the cannabis plant.

Understanding the difference between these two compounds is important in understanding the gray area surrounding CBD use while driving. Since both compounds come from the same plant, it is possible to have traces of THC in CBD products. When this happens, it can lead to issues for any CBD users who get pulled over while driving.

Since CBD products lack the hallucinogenic effects of THC, they do not pose a serious harm to most people. The gray area surrounding CBD and driving is due to the effects that this compound has on an individual on a case-by-case basis.

Some of the reported side effects of CBD products are:

• Drowsiness
• Paranoia or heightened anxiety
• Nausea or vomiting
• Mood swings
• Diarrhea

These symptoms present differently in each individual who uses CBD, and it is possible said effects may not present themselves at all.  Consequently, taking CBD and driving at the same time can be a safety hazard.

Ultimately, it is up to the individual to decide whether he or she can safely operate a vehicle after ingesting CBD. Any of the potential side effects could impact or impair a person’s ability to drive.

With so much uncertainty surrounding this compound, it is highly recommended that if you are planning to try CBD, you should do so in a controlled environment. It means that the first few times you ingest CBD or any time you try a new brand or product, ensure that you do not get behind the wheel before you see how your body will react.

While drowsy driving is not technically illegal, it is possible to be charged for negligence if you knowingly drove while impaired. The reasons why states put rest areas on the side of the road is to eliminate hazards by giving people a safe area to recover from fatigue. Accordingly, individuals must be held accountable for creating unsafe situations when they take substances, they know will impair their ability to drive.

While there are currently no laws or testing procedures in place for CBD use, should you be pulled over, the police may ask you to perform a Standard Field Sobriety Test roadside. Therefore, impaired drivers, whether resulting from alcohol or drugs, are subject to the same penalties, which means-if you are impaired or intoxicated, it is in your best interest and the interest of others not to drive.

CBD does not cause psychoactive effects and usually does not affect cognition; however, it does have potential side effects.

Dizziness, drowsiness, and nausea can make driving hazardous to you as well as to other drivers on the roadway. If you experience these effects from the use of CBD, you might make unsafe decisions while driving resulting in an accident as well as potential lawsuit and/or criminal charges.

If you are using CBD, it should be in a controlled setting where you can easily determine how it affects you. Some people experience no side effects while others do. The legality of CBD is dependent on its chemical makeup, thus CBD which contains more than 0.3 percent THC is illegal under federal law.  In Florida, for drivers, this means if you thought you were taking CBD without THC and an accident occurs and THC is found in your system, you could be arrested for DUI.

Further, if the CBD you choose is legal (within federal guidelines) and does not impair your ability to drive, you can drive using it.   However, if you experience CBD side effects and cause an accident, you could be charged with negligence.

If you are using CBD with greater than 0.3 percent THC content, and drive under the influence in Florida, you could be charged with DUI. Marijuana is still a controlled substance in the state of Florida, and your CBD/THC would be considered the same if you had the plant form of marijuana.

Because CBD works differently in the body than marijuana in its full form (with THC present), it does not technically qualify as a banned driving substance. While not all state laws are the same, CBD does not inherently impair the body for all users, so it has more room for leniency. Despite CBD’s legality, THC filled products are not legal throughout the United States, even though it is in some states).

The 2018 Farm Bill drastically changed CBD regulations by legalizing the commercial production of hemp (i.e., legally defined as the cannabis plant).  So long as a product’s THC levels/content are below 0.3%, it is legal federally. The foregoing is comparable to the blood alcohol level imposed for alcohol related driving incidents.

While manufacturers are required by law to reduce THC levels in their products, not all of them do. If you are pulled over in the state of Florida and found with THC in your system, you could face legal charges. Furthermore, if you caused an accident or death due to impairment caused by CBD products, you can be held responsible under the Florida Automobile/driving laws and/or Criminal laws.

Consumers need to purchase their CBD products from reputable sources, and as previously discussed, try the products before driving. The Florida laws and penalties increase in severity with each offense:

• First Offense: Up to six months in jail, 50+ hours of community service, license suspension (one year maximum), and fines up to one thousand dollars ($1,000.00);
• Second Offense: Up to nine months in jail, license suspension (five year maximum), and fines up to two thousand dollars ($2,000.00);
• Third Offense: Up to five years in jail, ten year license revocation, and fines up to five thousand dollars ($5,000.00).

To avoid the above penalties, it is imperative that you are confident that the CBD products you are consuming are legal and safe to use. You do not want to unknowingly ingest THC and then end up in trouble for an unintentional offense.

Though the risks of CBD are minimal compared to alcohol and other drugs, they still may carry some risk.  If it causes you unwanted side effects, then it may hamper your ability to drive safely. If you cause a DUI related accident because of CBD use, you could be charged in Florida with both negligence and criminal liability.

Navigating the gray areas of cannabis regulations can be very difficult to achieve. Depending on the severity of the offense, you could be facing harsh legal penalties for use of CBD products. If you have been involved in a THC or CBD related DUI accident in Florida, it is possible that you may be entitled to compensation for your injuries, if caused by another at fault party. YOU SHOULD THEN CONSULT WITH a Personal Injury Attorney.  In the alternative, if the incident is caused by you, then you should report it to your auto insurance carrier and consider CONSULTING WITH a Criminal Defense Attorney.