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Bailey v. Florida Dep't of Corrections6/29/2005
We grant this petition for writ of certiorari and quash an order that dismissed Bailey's medical malpractice action for his failure to comply with pre-suit notice requirements.
Bailey is a prison inmate. He received medical treatment in 2002, which he claims was haphazard and discontinued prematurely. In March 2003, Bailey submitted an inmate request form for medical records he needed to comply with the pre-suit requirements of chapter 766, Florida Statutes. He attached a signed consent and release form to his record request and noted that he had made a similar request months earlier, but had not received his records.
The department's response to the inmate request form states " nder confidentiality we are unable to release this confidential records to you, if you have your lawyer to request this we will be happy to comply." Bailey is not represented by counsel. He requested his medical records again in April 2003, and was again denied.
Bailey also filed an inmate request to be evaluated by an independent physician to meet the pre-suit requirements of chapter 766. He was told that any request for treatment outside the Department of Corrections would have to be approved by another office.
On April 29, 2003, Bailey filed a notice of intent to sue, and in November 2003, he filed suit. The complaint alleged that he was not able to comply with pre-suit requirements because the defendants would not release his medical records.
The defendants filed motions to dismiss the complaint, claiming they did not refuse to provide him with copies of his records. All of the defendants asserted that the records requests were not directed to them.
Bailey argued the records requests reached all of the defendants, either directly or through their agent. Bailey argued that he submitted his request to the medical department at Glades Correctional Institution, and the request was denied by T. Benjamin, the medical records supervisor. Bailey does not know whether Benjamin is employed by the state directly or by Wexford Health Services. Bailey asserted that the medical department at Glades Correctional Institution was the only place that he could have obtained his medical records at that time. The complaint alleged that Wexford, the company that provides medical care to inmates, is under the direction of the medical director at Glades Correctional Institution and the Department of Corrections.
Wexford, and the medical director of Glades Correctional Institution, Dauphine, argued the department's failure to respond should not constitute a waiver of the pre-suit requirements as to them. Wexford and Dauphine claimed they never received a request for medical records. However, Bailey's appendix includes inmate request forms indicating that he requested his medical records at least twice, once through the medical records supervisor at the Department of Corrections and once through the warden.
After the notice of intent to file suit was served, the medical records supervisor advised Bailey he could purchase his medical records and allowed Bailey to view some of them. Bailey argued the pre-suit requirement was, nevertheless, waived because the defendants did not timely comply with the records request and did not offer to provide the records until after Bailey served his notice of intent to file suit. See ยงยง 766.204(1) and 766.204(2), Fla. Stat. (2002); Mincey v. Moore, 814 So. 2d 1081 (Fla. 1st DCA 2002) (reversing an order dismissing an inmate's complaint for failure to provide a corroborating medical opinion, finding that defendant waived the pre-suit requirement because the Department of Corrections initially denied the inmate's records r
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