A Florida medical malpractice lawsuit could reopen a contentious debate over Amendment 7, a 2004 constitutional amendment that aims for transparency in health care by requiring providers to disclose certain medical error records.
As our Palm Beach medical malpractice lawyers can explain, the health care industry has had it out for Amendment 7 pretty much since the moment it passed by popular vote nearly two decades ago. It’s withstood several challenges, but that doesn’t mean it’s invincible – particularly with four new faces on the Florida Supreme Court since the last major ruling on it. If the state high court is persuaded by an appellate court panel to reconsider – and ultimately change – its position, it will mean plaintiffs in Florida medical malpractice cases will have a tougher time gathering pertinent information on the defendant provider’s medical mistakes.
What is Amendment 7, Florida’s Patients’ Right to Know?
Florida’s “Patients’ Right to Know” amendment (Article X, Section 25 of the Florida Constitution) gives patients the right to access medical records made or received in the course of business by a health care provider or facility relating to any adverse medical incident.
As explained by the U.S. Department of health & Human Services Office of Inspector General, an “adverse medical incident” is one in which a patient’s care results in an undesirable outcome, such as a prolonged patient stay, permanent patient harm, life-saving intervention necessity, or death. This would not be a patient succumbing to an underlying disease, but rather the result of errors, known side effects, substandard care, or complications that were unexpected but possibly unavoidable. Not every adverse medical incident is the basis for a medical malpractice lawsuit, but most medical malpractice lawsuits are the result of an adverse medical incident. Patients or surviving loved ones who are weighing legal action against a health care facility or provider may cite this amendment when requesting relevant incident reports and other records.
Obviously, health care facilities and insurers were opposed to this from the beginning, but state constitutional amendments are tough to change. Recently though, the First District Court of Appeal ruled 2-1 against a medical malpractice plaintiff who sought relevant records under Amendment 7. The appellate panel majority then took it a step further and implored the Florida Supreme Court to reconsider the 2005 amendment, saying:
- Years of court decisions on the issue have resulted in expanding Amendment 7 beyond what voters intended, in turn “radically transforming” medical malpractice litigation ion Florida.
- Adverse medical records created for submission to a peer review organization under the federal Patient Safety and Quality Improvement Act (PSQIA) should be shielded from mandated disclosures under Amendment 7.
For context, the PSQIA was passed in 2005 – just one year after Amendment 7 – with the goal of improving patient safety and care quality with the creation of a voluntary, confidential, and non-punitive system through which health care providers could freely report medical mistakes and near-misses. The idea was that by facilitating a free flow of information – unincumbered by legal risks – health care facilities and researchers would be able to more accurately scrutinize problematic trends and policies. The ultimate goal is minimizing medical risk to patients. The PSQIA shields health care providers who voluntarily collect data on medical mistakes for the purpose of turning it over to this federal program by classifying those records as “privileged.” They are labeled as “patient safety work product,” and protected from public disclosure.
Is There a Conflict With Federal Law?
Some health care and insurance industry advocates have argued that Florida’s Patients’ Right to Know amendment conflicts with federal law.
That was the case in the 2017 Florida Supreme Court ruling in Southern Baptist Hospital of Florida, Inc. v. Charles. A medical malpractice plaintiff requested the defendant hospital turn over any and all adverse medical incident reports in its history, as well as other records that pertained to treatment during a specific time frame. The hospital responded by providing two occurrence reports directly related to the patient’s care. However, the hospital refused to provide any further reports, data, or information on its adverse medical incidents, citing the PSQIA. The trial court ordered the hospital to turn over the records. The 1st DCA reversed. Plaintiff appealed to the Florida Supreme Court, where justices sided with the plaintiff, essentially ruling that protection of medical malpractice records under PSQIA is limited. If a record wasn’t created for the sole purpose of submission to voluntary peer review to “patient safety organizations,” that record couldn’t be considered privileged and confidential under PSQIA.
The U.S. Supreme Court allowed that ruling to stand when it declined to hear an appeal in the Charles case.
That brings us to the present – and yet another case before Florida’s 1st District Court of Appeals. In Tallahassee Memorial Healthcare, Inc. v. Wiles, plaintiffs allege medical mistakes during a complicated labor and delivery led to oxygen deprivation that resulted in the baby suffering brain damage and cerebral palsy. About 12 days after the child was born, a hospital employee created a “safety event report” pertaining to the incident. Subsequently in a medical malpractice lawsuit the parents filed against the hospital, doctors, and others, and in the course of that sought any hospital adverse incident reports on the event. The hospital objected to turning over the safety report, arguing it was only created for submission to a patient safety organization and therefore was protected under PSQIA. A circuit court judge ruled the records were not privileged and ordered the hospital to turn them over.
The appellate court reversed that ruling 2-1 on appeal, siding with the hospital. The majority justices in conclusion implored the Florida Supreme Court to take another look at Amendment 7, saying it deserves “rigorous” review, and voters never intended to eliminate the confidentiality of work-product privilege. They ruled the employee’s “safety event report” was not an “adverse incident report” because the hospital never sent the record to the Florida Agency for Health Care Administration – as is required by state law for all adverse incident reports.
The dissenting justice, however, was harshly critical of this reasoning (as are we), arguing that the hospital’s potential failure to follow applicable laws for reporting an adverse incident doesn’t mean it wasn’t an adverse incident. (Clearly, it was.)
Nonetheless, the majority wants the state high court to revisit this issue. If the court accepts review, there’s a decent chance the court won’t hold the same line on Amendment 7 as it did in previous challenges. Four of the five justices who ruled with the majority in the 2017 Charles case are no longer on the court. The two dissenters, meanwhile, remain on the court. The four new justices appointed by Gov. Ron DeSantis are notably more conservative than those they replaced.
Contact the South Florida medical malpractice attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Florida Justices Urged to Weigh Medical Malpractice Dispute, Nov. 16, 2022, By Jim Saunders, Law.com
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The Four D’s of Florida Medical Malpractice Lawsuits, Oct. 23, 2022, South Florida Medical Malpractice Lawyer Blog