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.

Serious negative consequences can arise in an accident case due to material representations, for example, a client & victim of an auto accident did not name all of their household members when taking out their insurance policy. Now, when that occurs, it may have saved them money initially at the time of purchase, but it can hurt them at the time when they need to utilize the benefits.  In the event that they are in an accident and the insurance company does their investigation, and the carrier finds out that there are various household members at the insured’s residence and/or live with them and were NOT named in the application for insurance, PIP benefits may be denied.

Misrepresentations or concealments of material facts made by an insured prior to a loss will typically provide the insurance carrier with a right to rescind the policy. On the other hand, misrepresentations made after a loss will typically provide the insurer with a right to deny coverage for the submitted claim. In Florida, the defense of misrepresentation is derived from Florida statutes, which allow insurance carriers to cancel coverage if the carrier can show a misrepresentation in an insurance application that is material to the risk insured. The law, in essence, states that a “misrepresentation, omission, concealment of fact, or incorrect statement” can prevent a claim recovery.

It is always recommended when completing and submitting an application for any type of insurance that the responses to questions therein be completely honest and forthright, because when one is involved in an accident, and medical treatment is necessary, PIP insurance coverage should be available for use. The amount of money that the insurance company would potentially pay out on a claim far exceeds whatever one would be saving at the time of policy purchase by not fully cooperating and honestly answering the questions in the application.

Needless to say, the foregoing applies to any type of insurance application, and by not completely and honestly answering the questions in the initial application and/or later on updating the answers, the result may have significant adverse consequences and potentially be the source of or basis for a denial of needed benefits and/or voiding the policy completely.

The Centers for Disease Control and Prevention’s (CDC) eviction moratorium will expire on March 31 unless it issues an extension. It’s unclear what will happen come April 1. President Joe Biden’s administration has less than a week to decide on extending the nationwide eviction moratorium.  Florida renters are currently protected only by the federal moratorium.  The CDC eviction moratorium is federal law.

Current eviction moratoriums  (As of March 27, 2021)

Eviction moratoriums are currently in place until:

March 31 — For any residential tenant of a single-family house, condominium or apartment who downloads from the U.S. Centers for Disease Control and Prevention’s website and submits to their landlord a declaration attesting that they are unable to pay their rent because of a COVID-19-related income loss.

June 30 — For any tenant of a single-family home with mortgages owned by Fannie Mae, Freddie Mac, Federal Housing Administration, U.S. Department of Agriculture or U.S. Department of Veteran Affairs.

Steps To Take If You Can’t Afford Rent

Tenants unable to pay rent because of Covid-19 have resources available to them. However, they are not automatically granted, so it’s important to be proactive in order to maintain your housing.

• Communicate With Your Landlord

Talk to your landlord as soon as you know you won’t be able to pay rent either on time or for the foreseeable future. Waiting until the last minute or after rent is past due could make working out a plan with your landlord more difficult.

The best thing to do is to get everything in writing (in case you have to go to court for eviction proceedings), so email would be an ideal way to communicate, Roth says. You might be entitled to rent relief funds, which can—by extension—also help your landlord. So, that’s a win-win for both parties. Let your landlord know that you plan to apply for rent relief, which covers back rent as well as current rent.

• File a Declaration Form With Your Landlord 

In order to qualify for rent relief, tenants must attest that they have been impacted by the pandemic and file a document stating as such with their landlord. The CDC has a form that tenants can use.

• Apply for Rent Relief 

There’s about $46.5 billion in rent relief out there for renters who need help. The problem is gaining access to that money. Unlike the stimulus checks, rent relief is not automatic. The other problem is that there is no central location where renters can access these funds. Cities and states have allocated funds to various local organizations to distribute within their communities.

If you’re unsure where to apply for rent relief, check the United States Department of Housing and Urban Development (HUD) database of state programs; they provide a list of places where you can apply for help in your area.

You’ll have to meet certain criteria to qualify for help, including earning less than $99,000 ($198,000 if filing jointly) annually.

• Seek Legal Aid if you Need Help 

As part of the $1.9 trillion American Rescue Plan, there are funds dedicated to legal counsel for renters who need help. If you’re unsure of your rights or if your landlord is threatening eviction, contact legal aid in your area. The Legal Services Corporation offers a database of free legal counsel in your area.

• If You’re Called to Court, Attend all Eviction Hearings 

Dealing with financial setbacks and any health issues arising from the pandemic is already stressful, so being called to court to defend your situation just adds more pressure.

Before your court date, make sure you have as much proof of your Covid-related financial or health problems as possible. This might include written testimony from your healthcare provider or employer, bank statements showing income reduction or a letter of termination from your workplace. Again, you should also contact legal counsel in your area to get information on your rights and help through the eviction process.

Han habido rumores sobre la disolución de la Comisión de Nominación Judicial Federal bipartidista desde hace algún tiempo, en la que he tenido el privilegio de servir.

La Comisión, apodada como “El JNC Federal”, es un organismo compuesto principalmente por abogados experimentados que son nombrados por los dos senadores de los Estados Unidos de la Florida para examinar a los candidatos que se presentan para jueces federales.

El JNC Federal del Distrito Sur es uno de los tres en Florida, y recomienda a los jueces que deciden casos desde los cayos, al condado de Palm Beach (los otros sirven a los Distritos Medio y Norte de la Florida).

Aunque no fue un proceso perfecto, los 35 miembros del Federal JNC produjeron una lista de 10 candidatos altamente calificados para el banco federal para llenar cinco vacantes cuando se reunió a fines de 2017. Y, nuevamente, recomendó nombramientos muy calificados recientes para el banco federal en 2019.

El riguroso proceso de entrevistas e investigación de antecedentes y los enérgicos desacuerdos entre los comisionados del JNC contribuyeron en gran medida a la calidad de las recomendaciones finales, que luego se convirtieron en los nominados por el presidente de los Estados Unidos y fueron confirmados por el Senado.

Ahora, con un nuevo presidente, deberíamos continuar el proceso. En Florida tenemos dos senadores estadounidenses del mismo Partido Republicano. Pero hemos visto que los funcionarios electos del mismo partido pueden, no obstante, estar en desacuerdo; por lo tanto, ¿por qué no dejar el JNC en su lugar para quitarles el trabajo de campo a los ocupados senadores?

Al final, tanto los senadores Marco Rubio como Rick Scott pueden estar de acuerdo con los finalistas, pero el presidente Demócrata Joe Biden puede simplemente negarse a nominar a esos candidatos para el cargo vitalicio. Eso podría llevar a un estancamiento, pero también podría obligar a ambas partes a comprometerse y concentrarse en recomendar a los candidatos mejor calificados para el poder judicial.

Los senadores conservan el poder de remitir y recomendar solo a aquellos individuos cuyas calificaciones y filosofías sean consistentes con sus principios.

Y como siempre, los senadores pueden cambiar la composición del JNC de mutuo acuerdo en cualquier momento.

Sin embargo, la eliminación del JNC en conjunto haría que estas nominaciones sean menos transparentes y podría producir resultados potencialmente embarazosos si los nominados no son examinados adecuadamente.

Deberíamos mantener el Federal JNC. El proceso es beneficioso para los senadores, el presidente y, lo que es más importante, para el público, que depende de un poder judicial federal justo y calificado.

Renier Díaz de la Portilla, Esq.

Caserta & Spiriti, Abogados