Supreme Court upholds patients' right to know about medical errors

By Christine Jordan Sexton and Carol Gentry
3/6/2008 © Florida Health News 

TALLAHASSEE -- Overturning decades of secrecy for "peer review" records, the state Supreme Court on Thursday fully upheld a constitutional amendment that gives Floridians the right to know about doctors' and hospitals' mistakes. Amendment 7, which was passed by more than 81 percent of voters in 2004, gives patients a right to see "any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident." The identities of patients are to be kept confidential. 

The 4-3 decision throws out sections of a law the Legislature passed in 2005 that hobbled the amendment by saying it applied only to records created after the vote in November 2004. The majority opinion said it would require tortured logic to think voters wanted access only to records that would be created in the future. "The amendment’s language makes evident that it was intended to effect an immediate change in the law governing access to medical records without the need for legislative action," it says. The justices who voted in the majority were Chief Justice R. Fred Lewis, and Associate Justices Harry Lee Anstead, Barbara J. Pariente and Peggy A. Quince.

Three justices who comprise the court's conservative wing dissented: Justice Charles T. Wells, Raoul G. Cantero III and Kenneth B. Bell. The dissent said that  applying the amendment to past peer review records -- which have been specifically shielded from discovery in malpractice suits for decades -- was "contrary to the law and fundamental fairness."

The majority acknowledged that their ruling would shake things up. But they quoted from the opinion of Fifth District Court of Appeals Judge Thomas D.  Sawaya: "We believe that Amendment 7 heralds a change in the public policy of this state to lift the shroud of privilege and confidentiality in order to foster disclosure of information that will allow patients to better determine from whom they should seek health care....(W)hat the people provide in their constitution, the Legislature and the courts may not take away through subsequent legislation or decision."

Hospital and doctor groups had fought to limit the effects of Amendment 7, saying it would benefit only the lawyers who bring malpractice suits. But the president of the Florida Justice Association, a group for plaintiff's attorneys,noted that Amendment 7 passed by the largest margin of any initiative in Florida history.

Petosa

"What that tells us -- and should have told the medical profession on that day -- is that citizens in our state are concerned ... about the alarming rate at which medical errors and medication errors occur in health care facilities across our state," said Frank Petosa, a Boca Raton trial attorney.  Opening up records that had been kept secret should help flush out bad doctors, he said. "The best way to prevent a medical malpractice claim is to prevent the malpractice."

Florida Hospital Association General Counsel Bill Bell called the ruling "disappointing," adding, "We are going to have to try to figure out how to deal with it." On the bright side, he noted that a judge would still have to rule that the medical records are pertinent before they can be introduced into a medical malpractice suit.

Experts on health law predict lots of unintended consequences from Amendment 7's enforcement. For one thing, they say, hospitals and clinics may stop writing down and filing a lot of information they once kept, for fear it will be requested by patients or reporters.

But consumer rights activists were elated. "The more information we can get about doctors and hospitals, the better off we are," said Bill Newton, executive director for Florida Consumer Action Network. 

The decision settles conflicting opinions from the First and Fifth District Courts of Appeal in Notami Hospital of Florida, Inc. v. Bowen and Florida Hospital Waterman Inc. v. Buster.

Christine Jordan Sexton, Tallahassee correspondent, can be reached at cjordansexton@hotmail.com. Carol Gentry, editor, can be reached at Carol.Gentry@FloridaHealthNews.org or 727-410-3266.