Hospitals Seek Delay of ‘Right to Know’ Malpractice Amendment

By Bill Kaczar | June 12, 2007

Hospital lawyers have urged the Florida Supreme Court to delay implementation of a state constitutional amendment that gives patients the “right to know” about past mistakes made by doctors and medical facilities.

They also asked the justices to reverse two separate appellate court rulings that struck down a law the Legislature passed to implement the amendment and limit the records of “adverse medical incidents” that patients can obtain.

The appellate courts, though, disagreed on whether the amendment applies to past records or only those created since voters approved the measure in November 2004. The amendment itself does not specifically say if it’s prospective or retroactive.

The Patients’ Right to Know Amendment should cover only new records, said Arthur England, a former Supreme Court justice, who argued on behalf of Florida Hospital Waterman Inc. in Tavares.

That means it would be many years before the measure gives patients any meaningful help in its intended purpose of letting them check on the past performance of doctors and hospitals.

“That sounds harsh, but the reason is that’s the way the ballot summary and amendment were written,” England told the justices.

Christopher Carlyle, a lawyer representing Teresa Buster, who had sued Florida Hospital over her husband’s death, disagreed. It defies common sense to argue voters intended the amendment wouldn’t apply to existing records, he said.

The justices, though, cannot put themselves into the minds of voters, England said.

The high court will rule at a later date.

England also argued the amendment cannot be applied retroactively because that would violate confidentiality rights of doctors and hospitals during peer reviews designed to encourage frank discussion in the interests of improving medical procedures.

Carlyle responded that such confidentiality is not an absolute right and could be lifted at any time by the Legislature or, as in this case, by voters.

The amendment is one of two voters passed in 2004 after they had been placed on the ballot through citizen initiatives organized by trial lawyers who represent patients in medical malpractice cases. The other amendment bars doctors with three malpractice judgments against them from practicing.

The same year voters also passed an amendment promoted by the Florida Medical Association to limit how much lawyers can collect from medical malpractice judgments. There three amendments were part of a continuing feud between plaintiffs’ lawyers and doctors over Florida’s medical malpractice procedures.

The Florida Hospital lawsuit was filed before the amendment passed but once it did, Buster’s lawyers tried to use it to obtain access to confidential performance records. The 5th District Court of Appeal in Daytona Beach denied that request, ruling the amendment was not retroactive.

The 1st District Court of Appeal in Tallahassee, though, came to the opposite conclusion in a consolidated case involving three malpractice lawsuits against Notami Hospital of Florida Inc., operating as Lake City Medical Center.

Both appellate courts, though, struck down a law the Legislature passed in 2005 to implement the amendment and concluded it is self-implementing.

Notami lawyer Steven Wisotsky urged the justices to uphold the law, which limits patients’ to getting only final reports of adverse actions. Without that restriction, hospitals and doctors would be overwhelmed trying to provide “any records” as called for by the amendment.

“The Legislature acted against a looming crisis,” he told the justices.

Thomas Equals responded for the plaintiffs, arguing the law “effectively disabled or eviscerated the whole concept” of the amendment.

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