Medical Malpractice (Amendment 7): Florida Hospitals Thumb Noses at Voters and Supreme Court

thumbing nose.jpgIn 2004, more than 80-percent of Florida voters passed Amendment 7, technically Article 10 Section 25 of Florida’s Constitution, commonly known as the “Patients’ Right to Know Act.” The amendment provides that “patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.”

Not surprisingly, a number of hospitals quickly lined up to challenge the scope of the voter-approved constitutional amendment. In essence, they sought to keep from having to produce documents relating to the investigation of adverse medical incidents, and in one of the cases, relating to the selection, retention, or termination of a doctor accused of medical negligence.

In 2008, The Florida Supreme Court, in Florida Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla., 2007), ruled against the hospitals, declaring that the shroud of privilege that existed in Florida with regard to medical records had been lifted by Amendment 7 to “allow patients to better determine from whom they should seek health care, evaluate the quality and fitness of health care 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 health care providers.” (The quoted language was used by the Supreme Court from the written opinion of Judge Sawaya in Florida Hospital Waterman, Inc. v. Buster, 932 So.2d 344 (Fla. 5th DCA 2006).

Sadly, in spite of the Supreme Court’s clear and strong opinion, Florida hospitals continue to refuse to produce the records or simply fail to keep track of adverse incidents, also against the law, in an effort to avoid accountability. See the CBS News report, I-Team: Ignoring Patients’ Right To Know.

The constitutional amendment has three goals: (1) enable patients to make informed medical decisions; (2) prevent hospitals accused of medical negligence from hiding behind an iron curtain of silence; and (3) encourage hospitals to perform better.

Lawyers and judges must continue to pressure hospitals to follow the law. Lawyers must fight for the records and judges must enforce the law with sanctions. There is no place for stonewalling in our civil justice system. Receiving medical information from hospitals is now a constitutional right and obtaining those records should not require the legal equivalent of hand-to-hand combat.

NOTE: Attorney Sean Domnick, who is quoted and interviewed in the CBS article, handled the Buster case at the trial level and argued the appeal before The Florida Supreme Court. He is my brother-in-law and our firms work together on significant medical malpractice and personal injury cases.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.