Florida Supreme Court Affirms “Patients’ Right to Know” (December Litigation Quarterly 2008)

December 1, 2008

On March 6, 2008, the Florida Supreme Court sided with patients and consumers in allowing them to examine records on past adverse medical incidents. The Florida Supreme Court, in reviewing two lower court decisions, held that Amendment 7, the Patients’ Right to Know About Adverse Medical Incidents, was clear in its intent that patients have a right to have access to records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.

An “adverse medical incident” is defined as any medical negligence, intentional misconduct, and other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient.1 This includes, but is not limited to those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed be any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representatives of any such committee.2

Amendment 7 was promoted as an aid for consumers and patients in making informed decisions in selecting a health care provider. In November 2004, Amendment 7 was passed by more than 81% of Florida voters and was incorporated into Article 10, Section 25 of the Florida Constitution.3

After the passage of Amendment 7, the Florida Legislature implemented Section 381.028, Florida Statutes in an attempt to preserve the confidentiality of peer review records created before the amendment was adopted. Numerous conflicting opinions from various Florida District Courts of Appeal arose in the courts’ attempts to reconcile the Amendment with Section 381.028. The Florida Supreme Court’s 2008 opinion in Florida Hospital Waterman, Inc. v. Buster 4 resolved those conflicts.

In Waterman, the Florida Supreme Court held that Amendment 7 on its face provided a sufficient rule by which patients would be able to gain access to records of a health care provider’s adverse medical incidents.5 The Florida Supreme Court went on to state that the amendment expressly declared that it was effective on passage without the need for legislative action. 6

The Florida Supreme Court went further in stating that this Amendment mandates access to existing adverse medical incident records.7 The Supreme Court did not favor the term “retroactive” because it was somewhat confusing in the context since a patient who may have benefited from the Amendment cannot go back in time to make an informed decision on medical care.8 However, the Supreme Court adopted the First District’s statement in Natomi Hospital of Florida v. Bowen, stating: “Because the plain language of the amendment expresses a clear intent that it be applied to include records created prior to its effective date, doing so is not an unconstitutional retroactive application.”9 Moreover, the Supreme Court concurred with the First District in its conclusion that “the Hospital does not have a vested right in maintaining the confidentiality of adverse medical incidents. The Hospital’s ‘right’ is no more than an expectation that previously existing statutory law would not change.”10

Lastly, in agreement with the First District, the 4-3 majority opinion struck down several statutory provisions of Section 381.028, Florida Statutes that attempted to limit effect of the Amendment, finding that: (1) the statute only allowed for final reports to be discoverable, while the amendment provides that “any records” relating to adverse incidents are subject to the amendment; (2) the statute only provided for disclosure of final reports related to the same or a substantially similar condition, treatment, or diagnosis with that of the patient requesting access; (3) the statute limited production to only those records generated after November 2, 2004; and (4) the statute stated that it had no effect on existing privilege statutes.11 The Supreme Court further indicated that in addition to those four limitations, the statute provided that patients can only access the records of the facility or provider of which they themselves are a patient, a restriction not contained within the amendment.12 The Supreme Court held that the unconstitutional subsections of Section 381.028, Florida Statutes could be severed without the need to strike down the entire implementing statute.13

This recent Florida Supreme Court decision substantially changes Florida law, resulting in a significant setback for health care providers. For decades, health care providers had relied on statutory discovery protections to protect the confidentiality of peer review information. However, the Supreme Court firmly held that Amendment 7 eliminated existing statutory discovery protections, leaving health care providers wondering what, if any, protections remain for the peer review process.

In sum, Amendment 7 only applies to records. Amendment 7 does not eliminate the statutory immunity for participation in peer review activities and require the disclosure of the identities of peer review committee members, and thus, this information remains confidential.

Endnotes

1 Article X, Section §25 of the Florida Constitution.

2 Id.

3 Fla. Dep’t of State, Div. of Elections, Nov. 2, 2004 General Election, Official Results, http://election.dos.state.fl.us/elections/resultsarchive/

4 Florida Hospital Waterman, Inc. v. Buster, 984 So.2d 478 (Fla. 2008).

5 Id. at 486.

6 Id.

7 Id. at 492.

8 Id. at 486.

9 Id. at 487 citing Notami Hospital of Florida v. Bowen, 927 So.2d 139, 145 (Fla. 1st DCA 2006).

10 Id. at 492 citing Notami Hosp., 927 So.2d at 143-44.

11 Id. at 493 citing Notami Hosp., 927 So.2d at 143.

12 Id.

13 Id. at 493-494.


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