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‘Patients’ Right To Know’ Issue Back In Florida

Six years after Florida voters approved the “Patients’ Right to Know” amendment, hospitals are still challenging its implementation. On Tuesday, that battle goes to the state Supreme Court.

The amendment gives patients — and, by extension, their lawyers — greater access to internal hospital records about foul-ups that might have caused injuries or deaths.

In the case to be argued before the court, patient Lynda See sued West Florida Hospital in Pensacola after allegedly suffering a severed bile duct and liver damage during 2003 surgeries. She asked for hospital incident reports related to her surgeries and sought credentialing information about the doctors involved.

In part, the hospital argues that “Amendment 7,” as it is often called because of its position on the 2004 ballot, violates the U.S. Constitution. They say it conflicts with a federal law that relies on internal medical-staff meetings – so-called “peer reviews” — to weed out incompetent doctors.

This dispute has been going on ever since the amendment’s passage by more than 80 percent of Florida voters. The Florida Supreme court has consistently ruled in favor of access to records.

In March 2008, the court threw out an after-the-fact legislative attempt to shut off some of that access. Recently, the court refused to hear an appeal filed by Shands teaching hospital.

“These issues affect the legal rights of all health-care providers and facilities in Florida, as well as the rights of all individuals who may claim entitlement to access records under Amendment 7,” Shands argued in trying to get the court to consider the appeal.

Bill Bell, general counsel for the Florida Hospital Association, said Amendment 7 is vague, which has caused questions about how it should work.

Lincoln Connolly, an attorney for former Shands patient Michael Baldwin, said he routinely has to fight with hospitals to get records under the amendment. He said hospitals are trying to avoid having to turn over the information.

“The health-care industry’s trying to get the courts to take a very restrictive view of what falls within Amendment 7,” said Connolly, whose client alleges he suffered injuries to his larynx and throat during a 2003 procedure at Shands.

A group backed by trial lawyers put the amendment on the 2004 ballot, after a fierce legislative fight in 2003 about restricting medical-malpractice lawsuits. Two other medical-malpractice amendments — one pushed by trial lawyers, one by doctors — also passed in 2004 but have had little effect.

The “right to know” amendment, however, has continued to generate controversy, as lawyers seek information that can be used to bolster malpractice cases.

A key question is the types of records hospitals must disclose. In the West Florida case, that has even led to a dispute about whether the hospital has to turn over blank application forms that are used when doctors seek medical-staff privileges.

West Florida also raises a bigger-picture argument about whether Amendment 7 violates the so-called Supremacy Clause of the U.S. Constitution. That clause generally says federal laws trump state laws when they are in conflict.

The hospital said in court briefs that confidentiality is an “indispensable component of effective and reliable peer review” — an internal process that hospitals use to investigate incidents and the performances of doctors.

West Florida contends that a loss of confidentiality under Amendment 7 undermines a federal health law. That law requires hospitals to report information to a national data bank, in an effort to prevent bad doctors from moving state to state.

But See’s attorneys dismiss such arguments, saying Congress made clear that it was not interfering with state laws about disclosing peer-review information. The 1st District Court of Appeal sided with See’s position in a 2009 ruling.

“In enacting the (law), Congress did not provide for confidentiality of peer-review records or communications,” the appeals court wrote.