Failure to provide medical records within 10 days constitutes evidence supporting waiver of requirement to provide corroborating medical opinion prior to filing suit for medical malpractice, despite plaintiff's failure to provide pre-payment for records.

The plaintiff, an indigent inmate acting pro se, asserted that he was relieved of the requirement to provide a corroborating medical expert opinion prior to filing his medical malpractice complaint because the doctors and operator of the corrections facility where he was incarcerated failed to comply with § 766.204, Fla. Stat. by not providing him with copies of his medical records. When requesting his medical records, the plaintiff advised the defendants that he did not have money to pay for the records and requested that a lien be placed on his account pertaining to the charges for the medical records. The defendants responded by offering to allow the plaintiff to review his medical records, refused to provide copies of the records until pre-payment was received and denied the plaintiff's request to put a lien on his account. The court agreed with the plaintiff, finding that the failure to provide medical records as required under § 766.204(1), Fla. Stat. obviated the necessity of providing a corroborating affidavit under § 766.204(2). Although defendant physicians and hospitals often insist on pre-payment for medical records, they will need to consider providing the records without securing pre-payment in order to avoid potential waiver of the corroborating affidavit requirement.

Case Law Alert - 1st Qtr 2012