• The Gist: Florida voters clearly want to know what is going on with providers, and their supreme court agreed with them.
© 2008 The Medical-Legal News
By Dan Clifford, publisher
The Florida Supreme Court in March upheld that peer review documents and those relating to adverse medical incidents are open to discovery and that such records made before passage of a new amendment are retroactively accessible.
Florida voters had overwhelmingly approved amendment 7 (Patients’ Right to Know About Adverse Medical Incidents) to their constitution in November 2004. The amendment conformed with HIPAA in that patient names would be redacted. The amendment opened up risk management documents, credentialing documents, quality assurance documents and those relating to medical negligence and intentional acts that caused, or could have caused, death or injury to patients. The amendment was not limited to just those documents that must be reported to the government.
Florida then passed section 381.028 of the Florida Statutes to put the amendment into law. Lawsuits followed that challenged the constitutionality of the new statute, claiming it too narrowly interpreted the broader voted-on amendment.
One big issue was whether or not existing records could be requested retroactively (in medical cases filed and underway before the amendment passed). The court deferred to the language of the amendment, and said it clearly applied to existing records.
Some hospitals had argued that they had a vested right in the possession of any records before the amendment passed, thus triggering a due process violation. The court rejected this reasoning stating that the mere expectation of continuance of legislative policy does not confer a right, like with a title.
Additionally, the high court took umbrage at 381.208’s restrictions that: 1) only “final” incident reports were discoverable (as opposed to all); 2) only records relating to a “substantially similar” incident to the requesting patient could be released; 3) adverse event records were still excluded; and 4) the requesting patient could only access records from a healthcare provider that had served the patient. The court rejected, as violating the amendment, and severed, these parts of the statute, effectively making records access quite broad.
The court noted that “the chief purpose of Amendment 7 was to do away with legislative restrictions on a Florida patient’s access to a medical provider’s history of facts, neglects or defaults because such history may be important to a patient.”
The two cases reviewed by the high court were Notami Hospital of Florida, Inc. v. Bowen, 927 So. 2d 139 (Fla. 1 Dist. 2006) and Florida Hospital Waterman, Inc. v. Buster, 932 So. 2d 344 (Fla. 5 Dist. 2006).
The court, quoting from Buster, went on to say: “We believe 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 healthcare, evaluate the quality and fitness of healthcare providers currently rendering service to them, and allow them access to information gathered through the self-policing processes during the discovery period of litigation filed by injured patients or the estates of deceased patients against their healthcare providers.”