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Florida Statute 381.028 - Full Text and Legal Analysis
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The 2025 Florida Statutes

Title XXIX
PUBLIC HEALTH
Chapter 381
PUBLIC HEALTH: GENERAL PROVISIONS
View Entire Chapter
F.S. 381.028
381.028 Adverse medical incidents.
(1) SHORT TITLE.This section may be cited as the “Patients’ Right-to-Know About Adverse Medical Incidents Act.”
(2) PURPOSE.It is the purpose of this act to implement s. 25, Art. X of the State Constitution. The Legislature finds that this section of the State Constitution is intended to grant patient access to records of adverse medical incidents, which records were made or received in the course of business by a health care facility or provider, and not to repeal or otherwise modify existing laws governing the use of these records and the information contained therein. The Legislature further finds that all existing laws extending criminal and civil immunity to persons providing information to quality-of-care committees or organizations and all existing laws concerning the discoverability or admissibility into evidence of records of an adverse medical incident in any judicial or administrative proceeding remain in full force and effect.
(3) DEFINITIONS.As used in s. 25, Art. X of the State Constitution and this act, the term:
(a) “Agency” means the Agency for Health Care Administration.
(b) “Adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider which caused or could have caused injury to or the death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or body, incidents that are reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee or any representative of any such committee.
(c) “Department” means the Department of Health.
(d) “Have access to any records” means, in addition to any other procedure for producing the records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records that have been made publicly available by publication or on the Internet may be provided by reference to the location at which the records are publicly available.
(e) “Health care provider” means a physician licensed under chapter 458, chapter 459, or chapter 461.
(f) “Health care facility” means a facility licensed under chapter 395.
(g) “Identity” means any “individually identifiable health information” as defined by the Health Insurance Portability and Accountability Act of 1996 or its implementing regulations.
(h) “Patient” means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.
(i) “Privacy restrictions imposed by federal law” means the provisions relating to the disclosure of patient privacy information under federal law, including, but not limited to, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, and its implementing regulations, the Federal Privacy Act, 5 U.S.C. s. 552(a), and its implementing regulations, and any other federal law, including, but not limited to, federal common law and decisional law, that would prohibit the disclosure of patient privacy information.
(j) “Records” means the final report of any adverse medical incident. Medical records that are not the final report of any adverse medical incident, including drafts or other nonfinal versions; notes; and any documents or portions thereof which constitute, contain, or reflect any attorney-client communications or any attorney-client work product may not be considered “records” for purposes of s. 25, Art. X of the State Constitution and this act.
(k) “Representative of the patient” means a parent of a minor patient, a court-appointed guardian for the patient, a health care surrogate, or a person holding a power of attorney or notarized consent appropriately executed by the patient granting permission to a health care facility or health care provider to disclose the patient’s health care information to that person. In the case of a deceased patient, the term also means the personal representative of the estate of the deceased patient; the deceased patient’s surviving spouse, surviving parent, or surviving adult child; the parent or guardian of a surviving minor child of the deceased patient; or the attorney for any such person.
(4) PATIENTS’ RIGHT OF ACCESS.Patients have a right to have access to any records made or received in the course of business by a health care facility or health care provider relating to any adverse medical incident. In providing access to these records, the health care facility or health care provider may not disclose the identity of patients involved in the incidents and shall maintain any privacy restrictions imposed by federal law.
(5) APPLICABILITY.Section 25, Art. X of the State Constitution applies to records created, incidents occurring, and actions pending on or after November 2, 2004. Section 25, Art. X of the State Constitution does not apply to records created, incidents occurring, or actions pending before November 2, 2004. A patient requesting records on or after November 2, 2008, shall be eligible to receive records created within 4 years before the date of the request.
(6) USE OF RECORDS.
(a) This section does not repeal or otherwise alter any existing restrictions on the discoverability or admissibility of records relating to adverse medical incidents otherwise provided by law, including, but not limited to, those contained in ss. 395.0191, 395.0193, 395.0197, 766.101, and 766.1016, or repeal or otherwise alter any immunity provided to, or prohibition against compelling testimony by, persons providing information or participating in any peer review panel, medical review committee, hospital committee, or other hospital board otherwise provided by law, including, but not limited to, ss. 395.0191, 395.0193, 766.101, and 766.1016.
(b) Except as otherwise provided by act of the Legislature, records of adverse medical incidents, including any information contained therein, obtained under s. 25, Art. X of the State Constitution, are not discoverable or admissible into evidence and may not be used for any purpose, including impeachment, in any civil or administrative action against a health care facility or health care provider. This includes information relating to performance or quality improvement initiatives and information relating to the identity of reviewers, complainants, or any person providing information contained in or used in, or any person participating in the creation of the records of adverse medical incidents.
(7) PRODUCTION OF RECORDS.
(a) Pursuant to s. 25, Art. X of the State Constitution, the adverse medical incident records to which a patient is granted access are those of the facility or provider of which he or she is a patient and which pertain to any adverse medical incident affecting the patient or any other patient which involves the same or substantially similar condition, treatment, or diagnosis as that of the patient requesting access.
(b)1. Using the process provided in s. 395.0197, the health care facility shall be responsible for identifying records as records of an adverse medical incident, as defined in s. 25, Art. X of the State Constitution.
2. Using the process provided in s. 458.351, the health care provider shall be responsible for identifying records as records of an adverse medical incident, as defined in s. 25, Art. X of the State Constitution, occurring in an office setting.
(c)1. Fees charged by a health care facility for copies of records requested by a patient under s. 25, Art. X of the State Constitution may not exceed the reasonable and actual cost of complying with the request, including a reasonable charge for the staff time necessary to search for records and prevent the disclosure of the identity of any patient involved in the adverse medical incident through redaction or other means as required by the Health Insurance Portability and Accountability Act of 1996 or its implementing regulations. The health care facility may require payment, in full or in part, before acting on the records request.
2. Fees charged by a health care provider for copies of records requested by a patient under s. 25, Art. X of the State Constitution may not exceed the amount established under s. 456.057(17), which may include a reasonable charge for the staff time necessary to prevent the disclosure of the identity of any patient involved in the adverse medical incident through redaction or other means as required by the Health Insurance Portability and Accountability Act of 1996 or its implementing regulations. The health care provider may require payment, in full or in part, before acting on the records request.
(d)1. Requests for production of adverse medical incident records shall be processed by the health care facility or health care provider in a timely manner, after having a reasonable opportunity to determine whether or not the requested record is a record subject to disclosure and to prevent the disclosure of the identity of any patient involved in the adverse medical incident through redaction or other means.
2. A request for production of records must be submitted in writing and must identify the patient requesting access to the records by name, address, and the last four digits of the patient’s social security number; describe the patient’s condition, treatment, or diagnosis; and provide the name of the health care providers whose records are being sought.
History.s. 1, ch. 2005-265; s. 5, ch. 2006-271; s. 75, ch. 2007-5; s. 5, ch. 2013-108.

F.S. 381.028 on Google Scholar

F.S. 381.028 on CourtListener

Amendments to 381.028


Annotations, Discussions, Cases:

Cases Citing Statute 381.028

Total Results: 17

Florida Hosp. Waterman, Inc. v. Buster

984 So. 2d 478, 2008 WL 596700

Supreme Court of Florida | Filed: Mar 6, 2008 | Docket: 1288177

Cited 68 times | Published

also conclude that several subsections of section 381.028, Florida Statutes (2005), conflict with amendment

West Florida Regional Medical Center, Inc. v. See

79 So. 3d 1, 37 Fla. L. Weekly Supp. 22, 2012 Fla. LEXIS 55, 2012 WL 87282

Supreme Court of Florida | Filed: Jan 12, 2012 | Docket: 60305136

Cited 26 times | Published

implementing legislation for Amendment 7 — i.e., section 381.028, Florida Statutes (2006) — stated that Amendment

Notami Hosp. of Florida, Inc. v. Bowen

927 So. 2d 139, 2006 WL 1041542

District Court of Appeal of Florida | Filed: Apr 21, 2006 | Docket: 1764868

Cited 15 times | Published

Florida Constitution, is self-executing, and section 381.028, Florida Statutes (2005), enacted to implement

Florida Hosp. Waterman, Inc. v. Buster

932 So. 2d 344, 2006 WL 566084

District Court of Appeal of Florida | Filed: Mar 10, 2006 | Docket: 1285604

Cited 10 times | Published

Effective June 20, 2005, the Legislature enacted section 381.028, Florida Statutes, to implement the provisions

Columbia Hospital Corp. of South Broward v. Fain

16 So. 3d 236, 2009 Fla. App. LEXIS 11600, 2009 WL 2516917

District Court of Appeal of Florida | Filed: Aug 19, 2009 | Docket: 1126733

Cited 7 times | Published

unconstitutional. Id. at 493 (finding that section 381.028(7)(a), and other portions of this "implementing"

Florida Eye Clinic, P.A. v. Gmach

14 So. 3d 1044, 2009 Fla. App. LEXIS 6557, 2009 WL 1490838

District Court of Appeal of Florida | Filed: May 29, 2009 | Docket: 1650428

Cited 5 times | Published

the legislation implementing amendment 7, section 381.028, Florida Statutes, was unconstitutional in

AVANTE VILLA AT JACKSONVILLE v. Breidert

958 So. 2d 1031, 2007 WL 1593242

District Court of Appeal of Florida | Filed: Jun 5, 2007 | Docket: 1734928

Cited 3 times | Published

Florida Legislature codified Amendment 7 in section 381.028(3), Florida Statutes, and defined "health care

Bartow HMA, LLC v. Kirkland

126 So. 3d 1247, 2013 WL 6050895, 2013 Fla. App. LEXIS 18154

District Court of Appeal of Florida | Filed: Nov 15, 2013 | Docket: 60236283

Cited 2 times | Published

(“HCQIA”). Bar-tow Regional also cited to section 381.028, Florida Statutes (2012), which purports to

Cedars Healthcare Group, Ltd. v. Ampuero-Martinez

88 So. 3d 190, 2011 WL 4374270, 2011 Fla. App. LEXIS 14940

District Court of Appeal of Florida | Filed: Sep 21, 2011 | Docket: 60308179

Cited 2 times | Published

diagnosis as the patient requesting access. See § 381.028(7)(a), Fla. Stat. (2010). By not limiting the

West Florida Regional Medical Center, Inc. v. See

18 So. 3d 676, 2009 Fla. App. LEXIS 14400, 2009 WL 3047396

District Court of Appeal of Florida | Filed: Sep 25, 2009 | Docket: 1640431

Cited 2 times | Published

(3) in denying Petitioner the right, under section 381.028(7)(b)1, Florida Statutes (2006), to use the

North Broward Hosp. Dist. v. Durham

991 So. 2d 967, 2008 WL 4224278

District Court of Appeal of Florida | Filed: Sep 17, 2008 | Docket: 1397809

Cited 1 times | Published

the Florida Constitution, and codified as section 381.028, Florida Statutes. This amendment provides

Tandem Healthcare, Inc. v. Benjamin

969 So. 2d 519, 2007 WL 4126518

District Court of Appeal of Florida | Filed: Nov 21, 2007 | Docket: 1403683

Cited 1 times | Published

facility and health care provider found in section 381.028(3), enacted in 2005 to codify Amendment 7.

North Broward Hosp. Dist. v. Kroll

940 So. 2d 1281, 2006 WL 3208052

District Court of Appeal of Florida | Filed: Nov 8, 2006 | Docket: 1523979

Cited 1 times | Published

Laws of Fla. (effective June 20, 2005); see also § 381.028(5), Fla. Stat. (2006). In ordering the production

Amber Edwards v. Larry D. Thomas, M.D.

229 So. 3d 277

Supreme Court of Florida | Filed: Oct 26, 2017 | Docket: 6180334

Published

the ordinary course of ... business”); see also § 381.028(3)0*), Fla. Stat. (2010) (defining “records” for

Myriam Ampuero-Martinez, etc. v. Cedars Healthcare Group, etc.

139 So. 3d 271, 2014 WL 321822

Supreme Court of Florida | Filed: Jan 30, 2014 | Docket: 694201

Published

patient requesting access.” Id. (citing § 381.028(7)(a), Fla. Stat. (2010)). The district court

Cedars Healthcare Group, etc. v. Myriam Ampuero-Martinez, etc.

Supreme Court of Florida | Filed: Jan 30, 2014 | Docket: 694298

Published

the patient requesting access.” Id. (citing § 381.028(7)(a), Fla. Stat. (2010)). The district court

BAYFRONT MEDICAL CENTER, INC. v. Neavins

920 So. 2d 185, 2006 Fla. App. LEXIS 1653, 2006 WL 305487

District Court of Appeal of Florida | Filed: Feb 10, 2006 | Docket: 1730730

Published

Adverse Medical Incidents Act" — now codified in section 381.028, Florida Statutes (2005) — became law. See