Consent: Physician Not Authorized to Release HMO Members' Medical Records Unless HMO Has Secured Members' Express Written Consent-Humana Med

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Consent: Physician Not Authorized to Release HMO Members' Medical Records unless HMO Has Secured Members' Express Written Consent Humans Med Plan, Inc. a Fischman1-Florida's Fourth District Court of Appeals held that under Florida law doctors are not required to release patient records to health maintenance organizations until the doctor receives written authorization from the patient.2

Appellants, Humans Medical Plan, Humans Health Plan of Florida, and Human Health Insurance Company of Florida ("Humans") and appellee, Dr. Charles M. Fischman, entered into a Physician Agreement (Agreement) in 1994. The Agreement included a provision requiring Fischman to deliver Humans member medical records upon Humana's demand. In 1997, Humans notified Fischman that it was terminating the Agreement and demanded the delivery of all member medical records. Fischman delivered only those records of members who had given their express written consent. Consequently, Humans filed a compliant seeking the possession of the additional records.3

Thereafter, Fischman filed a motion for partial summary judgment. In the motion, Fischman argued that under section 455.667,(4) Humans had no right to possession because it did not qualify as "owner" of the records. At the summary judgment hearing Humans conceded that section 455.667 did not authorize it to obtain the records without prior authorization from Fischman's patients. Therefore, the court entered summary judgment in favor of Fischman and awarded him attorney's fees and costs. 5

The Florida Court of Appeals affirmed the circuit court's determination. The Appellate Court held that the case was governed by section 455.241,(6) the predecessor to section 455.667, which was in effect at the time Humans and Fischman executed the Agreement. Section 455.241 "prohibits the disclosure of [medical] records to any person other than the patient, his legal representative, or other health care providers involved in the care or treatment of the patient, absent written authorization of the patient. …