Florida Attorney General holds presuit notice in medical malpractice case filed with Department of Health is public record

The Health Law Section thanks Graham Nicol, General Counsel of the Florida Dental Association, for the following summary of Attorney General Opinion 99-43.

Attorney General Opinion 99-43: Department of Health Presuit Notices are Public Records

Attorney General Opinion 99-43, issued July 9, 1999, states that a presuit notice in a medical malpractice case filed with the Department of Health pursuant to section 766.106, Florida Statutes (1998 Supplement), under section 455.621, Florida Statutes, is a public record and may not be maintained as confidential and exempt under the provisions of section 455.621(10), Florida Statutes.

Section 455.621(10), Fla. Stats., indicates that the "complaint and all information obtained pursuant to the investigation" by DOH are confidential and exempt from the public records law (Section 119.07(1), Fla. Stats.) until 10 days after probable cause has been found or until the subject of the investigation waives his or her privilege of confidentiality, whichever occurs first. But the advisory opinion concludes that the above-referenced statute does not protect presuit notices from public record requests because presuit notices are not specifically exempted.

The advisory opinion also indicates that, while various other statutes create specific exemptions for presuit notices, they do so only in the context of civil or administrative litigation and provide no confidentiality in the context of public records requests.