It is a part of the Florida Constitution.

It seemed fair to patients. With hospitals and doctors claiming the medical negligence problem was over blown, Florida Section 25, “Patients’ right to know about adverse medical incidents”, seemed like a common sense and fair law.

Read it. It is not very complicated.

But, since 2004, hospitals have been spending a great deal of time and money trying to circumvent, dodge and slip under the law. Sadly, hospitals have had reasonable success in throwing up legal roadblocks to the constitutional “requirement”.

What does Section 25 set forth? It seems pretty straightforward:

1. Patients have the right to have access to any records made or received in the course of business by a health care facility or a health care provider that relate to any adverse medical incident.
2. The health care provider is required to redact the personal information of any patient records released in complying with the law.
3. A patient is intended to mean: an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.
4. The law was intended to encompass: “adverse medical incident” means medical negligence, intentional misconduct, and any 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.

A Coral Springs man, Harlan Ginsberg, has run headlong into a huge roadblock constructed by Northwest Medical Center, owned by HCA (Hospital Corporation of America), in Margate, Florida.

Mr. Ginsburg suffered a kidney stone attack. In the scheme of medical problems – not exactly a four alarm emergency. Certainly a medical condition that should allow health care providers to be deliberate and careful about their treatment, right?

Before leaving Northwest Medical, however, health care providers had been successful in cutting Mr. Ginsburg’s ureter (a tube that delivers urine to the bladder) and removing a completely healthy kidney, according to testimony of a physician.

Mr. Ginsburg was, understandably, upset. I would be if you removed a perfectly good, properly working organ from my body without even, well, asking me first.

He wanted to know how many other similar incidents occurred at the hospital and what the details were of those other incidents. He asked for the records under Section 25 of the constitution. Northwest Medical refused to provide him with the records. Later, probably after getting some good legal advice, the hospital relented and agreed to search its records for Mr. Ginsburg’s requested data. First, though, the hospital wanted $77,550 up front. I think we can look at $77,550 as a pretty big roadblock.

Section 25 of the Florida Constitution does not set forth anywhere that the hospital is permitted to charge to do a search that will produce the information. In fact, one might argue that if a law requires the provision of certain information, a corporation is intentionally violating the law by not maintaining record keeping in a way that allows compliance. But, that is one of the favored excuses from hospitals – “we do not maintain our records in a way that allows us to easily locate that information”.

Let’s think about that a minute. You run a hospital. I mean let’s pretend you are the CEO of a major hospital corporation. You are sitting in your office trying to determine the types of reports you want to regularly look at to accomplish your job responsibly. Wouldn’t a report that tells you how many medical incidents of negligence or mistake occurred in your hospital be one of the top five reports you would want to see? So, how can that data not be readily available to anyone?

How long will health care facilities and malpractice insurance companies be permitted to simply ignore or to dodge a part of the Florida Constitution? When will our lawmakers start requiring corporate compliance? When will someone stand up for individual citizens rights?

So far, citizens are not seeing any standing up from the executive branch or the legislature.

Florida medical malpractice statutes are a great deal about procedure and less about substance.

As in many states, Florida citizens have suffered the removal of legal rights under Florida’s medical malpractice laws by legislators with specific agendas other than the improvement of citizens’ lives. More often, business and insurance lobbies push for legislation to improve their own financial bottom lines.

In Florida, we have “pre-suit screening procedures” for any medical negligence case before a lawsuit may be filed. These procedures require things like an expert affidavit attesting to the negligence and a 90 day investigation period by all parties. The notion of these things appears to be of value on paper, but in practice – not so much.

The expert affidavit is actually a good idea. Why not require the plaintiff to prove, at least initially, that a good faith basis for a lawsuit exists?

The 90 day pre-suit investigation period would also be a good idea, except for a couple of factors.

Whether it makes any sense or not, medical malpractice insurance companies almost never have any interest in settling a case in the early stages. They want to do a couple of things before they even consider a settlement. First, they want to hold onto their money as long as possible so they can continue to earn investments. Second, they want to see if they can wear down the plaintiff or the plaintiff’s lawyer by spending the plaintiff attorney’s money to litigate the case.

For these and other reasons, for the plaintiff and his lawyer, the 90 day period is filled with a great deal of accumulating documents and responses to questions directed from the insurance company for the physician or hospital. There is almost never any real inquiry of significant substance or discussion of settlement, but mostly an “exercise in exercising” the plaintiff.

I provide this backdrop simply to emphasize the disappointment of a recent case dismissal that was affirmed by the Court of Appeals. The case was filed by another law firm and involved egregious medical malpractice. The basic facts are:

• A man is taken to the emergency room of a local hospital with symptoms of abdominal pain, nausea and vomiting blood.
• The man is found to have elevated blood sugar levels and is in the process of diabetic ketoacidosis.

This is an emergency situation. In fact, from a medical perspective, it should be a four alarm fire. Once the diagnosis of diabetic ketoacidosis was made, the hospital emergency physician knew this man would die without timely treatment by a gastroenterologist.

The decision from the appellate court sets forth that: “Every off-site doctor that [the hospital] contacted refused to come to the hospital to treat” this man. The involved hospital eventually transferred the patient to a hospital in Broward County for treatment, but he died soon after arrival.

The estate for the deceased filed its complaint and apparently alleged that the hospital had violated its duty to provide care and treatment of patients such as the deceased and that care necessarily required providing physicians competent to treat various conditions. So, according to the appellate decision, the plaintiff sued, at least in part, for failures in corporate planning – the failure to provide a framework for properly treating patients. The plaintiff was, in other words, saying that the hospital’s failure, which caused the man’s death, was not medical malpractice, but was corporate negligence. As a result, the plaintiff did not undertake to comply with the pre-suit requirements discussed above.

The appellate court dismissed the lawsuit and set forth that the hospital’s failure did, in fact, constitute medical negligence and the plaintiff’s failure to comply with the pre-suit procedures under the Florida Medical Malpractice statute was fatal to their lawsuit.

So, for largely procedural, administrative, reasons, the death of this young man will go unpunished. No one will be held to account for the gross, reckless conduct of the hospital and its physicians. The family of this poor gentleman will never receive any justice for the callous refusal of the physicians and outrageous failure of the hospital.

Please just take a moment to concentrate.

Close your eyes and try to imagine that you are lying back in a bed. This bed has not had the bed clothes changed for a while and you are currently laying in feces and urine because you are not able to get out of bed by yourself. You have not seen anyone come by or into the room for several hours. You have open bedsores that, although bandaged, are infected and now soaked with urine and feces. You are 85 years old and during your life you helped a great many people and contributed to many people’s lives. You want to cry, but the tears will not come.

Sound severe? Sound like it is exaggerated?

I have been involved reviewing and evaluating a number of claims for nursing home negligence and abuse over the years for both the defense and the plaintiff. This story is not an exaggeration and it is not too severe.

There are many good nursing home facilities and, although some are better than others, most make an honest effort at reasonable care for those to whom we owe good care – our elderly citizens. For those who have contributed to our society over the years and for those who often can not care for themselves.

Sadly, there are those nursing homes that are not good and who do not staff sufficiently to properly take care of the people they have promised they would. There are facilities in which the interests of the owners are to make as much money as possible and to do so with as low an overhead as they can possibly have. There are nursing homes in which the staff is so low that needy patients go hours and sometimes days without any meaningful care.

The Florida legislature currently has proposed to pass Senate Bill 1396, relating to the liability of nursing homes for negligence and gross negligence. The bill has nothing to do with improving nursing home care or helping to ease the burdens of the elderly.

What the legislature has done with this bill is go out of the way to protect the best interests of nursing home owners; there boards of directors and virtually all the management level people. The legislators have engineered a procedure requiring a hearing in order to substantiate claims against these officers and the bill seems a little unclear to me whether they are going to permit the hearing to occur after the injured nursing home resident is permitted to conduct discovery of facts and documents or before.

The proposed bill also has legislators fixing the value of elderly people at $300,000. The facts do not matter; it does not matter how much you loved mom; it does not matter that, but for the abuse, mom would have lived another 20 years; mom is not worth more than $300,000 according to Florida legislators. In addition to this, legislators also employ some legal maneuverings to limit damages even more if the injured elderly person dies.

The legislators have also crafted some language to protect the corporate officers and the corporation owning the nursing home. The corporation and its officers can only be held liable for punitive damages if the intentional misconduct or the gross negligence was “condoned, ratified, or consented” to by the “officers, directors, or managers of the actual employer corporation”. So, if the corporation is not spending the money to provide supervision of their nursing aides and they allow grandma to be ignored to the point she dies, the corporation can not be held liable for the damages unless specific knowledge can be proved.

Should this bill pass, the only objective thing, which can be said about it is that running a nursing home in Florida just got a great deal more profitable and being elderly in Florida just got a great deal more scary.

It is disappointing when otherwise intelligent, insightful people simply choose to ignore facts and fail to protect the very people they have sworn to serve.

It is no secret that many industry-wed lawmakers have been working for a long time to place damage caps on injuries caused by the negligence of others.

Those same industry-owned lawmakers stand for protecting the profits of hospitals and insurance companies over the protection of citizens. These are legislators and executive branch folks who are willing to sacrifice our rights in the interests of promises to lobbyists or keeping alive their favorite bill.

Currently, Congress, state legislators and governors are busy trying to protect corporate healthcare and insurance companies on the backs of victimized patients. Add to that a concerted effort to dismantle the only attempt, albeit flawed, to fix a flawed and dysfunctional health care system. These politicians are not builders; they seek to create or enhance nothing. These lawmakers want to dismantle anything lobbyists tell them to defeat in the best interests of their corporate constituents.

Fact: It has been estimated that medical errors cause $17 – $29 billion every year in lost income, disability and healthcare.

Fact: The Department of health & Human Services estimates that medical errors result in $4.4 billion in additional Medicare costs.

Fact: Patient rights have been taken away or diminished in 48 of the 50 states already. This has done nothing to improve health care quality or costs in any of those 48 states.

Fact: In the 48 states already enacting limits on the rights of the injured there has been no tangible savings in terms of insurance reductions or health care cost reduction.

Fact: Preventable medical errors cause the death of 98,000 people each year (Institute of Medicine). Limiting the constitutional right of injured victims has done nothing to improve the quality of health care or to reduce the numbers of injured people or the number of patients killed by preventable medical care errors.

Fact: Defensive medicine is a myth dreamed up by those who desire increased corporate profits. Defensive medicine may be motivated more by a desire to increase profits to doctors and hospitals as the alleged defensive medicine.

Fact: The “lawsuit crisis” is a well conducted campaign of propaganda, spin and lies.

Fact: Lawsuits filed by injured people represent a very small percentage of the total burden on the court system. Actually, the largest numbers of lawsuits involve divorce, estates and corporations suing each other.

Fact: Passing laws to protect one special class of Americans to the detriment of the majority of Americans is in violation of the constitution. Protecting doctors, hospitals and insurance companies while denying patients their rights, is simply unfair and unlawful.

Fact: The groups fighting the hardest to infringe on the rights of citizens of individual states are the same groups who have repeatedly told Americans that “Big Government” is bad and that the federal government should stay out of the business of the states. So much for smaller government.

Fact: People in favor of tort reform can not use facts to support their arguments. They rely on hyperbole and spin fed to them by groups supported by business interests.

Fact: Who will pay for the costs of medical care, lost income and rehabilitation caused by medical errors if the rights of victims to pursue legal remedies are taken away? You and I will pay through increased taxes to fund medicare, social security and increased insurance premiums.

Fact: Who will benefit from taking away rights? Hospitals, insurance companies and corporations.

Before you take a position on this very important constitutional battle, educate yourself, be informed, and do not blindly accept information given to you by anyone.

Read, research and rely on your own common sense.

Who is paying for all these campaigns and lobbyists who have the ears of YOUR law makers?

A 2009 study published by the New England Journal of Medicine analyzed almost 12 million Medicare beneficiaries and found:

• 20% of patients were readmitted within 30 days of discharge
• 34 % of patients were readmitted in 90 days of discharge
• 67.1% of patients percent were readmitted one year after discharge or had died

This revolving door effect cost Medicare $17.4 billion dollars in 2004 and the problem continues to escalate.

Medicare is responding by collecting data on all hospitals and will keep a running three-year average on readmission rates. Those hospitals having high rates will be financially penalized.

According to a Medicare Payment Advisory Commission study, 75 percent of all 30-day hospital readmission are preventable and if they can be avoided, the quality of patient care will improve. Higher rates of hospital readmission are associated with infections and other complications acquired by patients during hospital stays.

In a pilot project in which hospitals were paid bonuses and held accountable for better outcomes and less bounce backs, quality improved and readmission rates fell substantially.

The cause for patients having to readmit patients after a hospital stay seems to fall into one of the following categories:

1. Lack of communication between patient and doctor
2. Complete lists of medications missing from patients
3. Follow-up appointments were never made or communicated
4. Wound care or other instructions were confusing or never received
5. No official hand-off from one physician to another
6. Insufficient monitoring of patients after discharge — especially regarding medications

Medicare does not currently pay hospitals for monitoring or mentoring patients after discharge.

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Every day on TV, we are bombarded with advertisements urging us to purchase numerous prescription and over-the-counter drugs that will cure everything that ails us (and even cure diseases and conditions unknown or non-existent prior to drug company marketing efforts).

Do these medications really work?

Do they cause more harm than good to our well-being?

Do the risks outweigh the benefits?

Are there some bothersome conditions that should be tolerated and accepted rather than treated with medications?

The number of medication-related injuries and deaths in the U.S. are estimated at over 1.5 million per year, making medications one of the leading causes of death according to a 2006 report from the Institute of Medicine of the National Academies.

Dr. Leo Galland, M.D., a practicing physician and noted medical author, says that not all medications are created equal and that many have serious side effects that the manufacturers failed to adequately disclose to the FDA prior to approving them for marketing.

Dr. Galland believes that a number of common medications can be hazardous to your health.  For example, nonsteroidal anti-inflammatory drugs (NSAIDs), which include over-the-counter drugs such as aspirin, ibuprofen, and naproxen (also known as Aleve), cause a number of serious injuries and deaths each year.  Dr. Galland’s studies have found that these drugs relieve pain and inflammation by blocking an enzyme called cyclo-oxygenase (COX), but at what cost?

“Although COX activity contributes to pain and inflammation, this enzyme also performs important functions such as protecting the stomach from the corrosive effects of its own acid, regulating circulation of blood to the kidneys, and modulating the activity of the immune system,” says Dr. Galland. “Almost all drugs today are intended to act like biochemical strait jackets which suppress cellular functions that appear to be overactive,” adds Dr. Galland. “They also interfere with the natural and healthy functions of the body. It is like throwing a wrench into a sophisticated machine in an effort to fix it.”

The net result of disturbing this delicate balance in the COX enzymes is that a number of patients suffer life-threatening gastrointestinal bleeding and ulcers as well as renal failure and other significant health problems as a result of ingesting these popular drugs.

The manufacturers of Vioxx sought to build a better mousetrap – a pain killer that was as effective as other popular NSAIDs without blocking Cox-1 enzymes and thereby causing bleeding issues.  In doing so, however, Vioxx caused other disturbances to the COX system that rather than causing ulcers, instead caused pro-thrombotic events that led to heart attacks and strokes.  “What scientists behind the creation of Vioxx failed to recognize is that all forms of the COX enzyme are important for health,” says Dr. Galland.

Many physicians are now recommending proper nutrition, which when used properly, can achieve results that drugs cannot, because nutrients are essential components of the cellular information network in our bodies.

“The regular use of Omega-3 fatty acids in the diet is an excellent example of how the cells of our body use the Omega-3’s to make powerful chemicals that help to maintain normal cell function under conditions of stress,” advises Dr. Galland.

Omega-3 fats provide an alternative to drug therapy for controlling inflammation in the body, a natural process that, when excessive, can lead to cancer and disease.

Patients who change their diets and decrease their consumption of foods that interfere with the anti-inflammatory effects of Omega-3 fats experience less inflammation and therefore have fewer needs for anti-inflammatory drugs.  These dietary changes include reduced intake of red meats and foods that contain certain oils (including corn, sunflower, soybean, safflower or cottonseed oil).  Dr. Galland recommends using olive oil or flax oil as a substitute.

“Making nutrition a cornerstone of everyone’s healthcare has been my longstanding goal and is the first step in real healthcare reform,” adds Dr. Galland. “Moving from a system based on treating symptoms to a system for achieving optimal health will enable healthcare to achieve its true potential.”

One can only hope that our healthcare system takes these maxims to heart, pardon the pun, and seeks to encourage an increase in the healthy foods placed in our grocery cart each week and a decrease in the number of pill bottles placed in our medicine cabinet.

Following published reports and extensive media coverage regarding egregious behaviors in the medical profession, public awareness of physician and hospital errors has increased. Despite that increased attention, data suggests that the rate of reporting by physicians is lower than it should be.

In the JAMA July 14 issue, one of the major themes covered was research articles and commentary on the Physician Peer Review process and its effectiveness. The medical peer review is the process by which a committee of physicians examines the work of a peer and determines whether the physician under review has met the accepted standards of care in rendering medical services. This process is put in place specifically to assure physicians that their statements will remain confidential when commenting on the behaviors of their colleagues (many of whom are a physician’s primary referral sources).

An original research study titled “Physicians’ Perceptions, Preparedness for Reporting, and Experiences Related to Impaired and Incompetent Colleagues” found that overall, “…physicians support the professional commitment to report all instances of impaired or incompetent colleagues in their medical practice to a relevant authority; however, when faced with these situations, many do not report.

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New studies show that hospital deaths increase sharply in July causing a “July Effect”. The study illustrates the need for patients to practice caution while accepting medical care in that month or over the weekend days.

A recent study by the University of California at San Diego demonstrates that fatal medication errors rose 10 percent in July at teaching hospitals in the United States. This “July Effect,” doesn’t seem to mean that hospital staffs are running amok, but that more medication errors seem to be the culprit in teaching hospitals. The study investigated more than 62 million U.S. death certificates between 1976 and 2006. Of those, 244,388 deaths were caused by medication errors in hospitals such as dispensing the wrong medications, overdoses, and accidents involving drugs or biological agents.

The researchers examined certificates of inpatients, outpatients, and those who died in the emergency department, in which medication error was recorded as the primary cause of death. Counties containing teaching hospitals experienced a 10 percent rise in fatal medication errors in July, whereas counties lacking teaching hospitals did not experience that spike.

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In legal cases, a term regularly shows up: “standard of care”. It is talked about, defined and ruled on by the court. In many state statutes, the term is defined as something similar to: “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

What is the standard of care in its most basic terms?

If I am a pedestrian, do I have a “standard of care” as I walk along the street? Of course I do. I must watch the pavement as I am walking so as not to trip over obvious hazards. If I come upon a blocked area of the sidewalk, where work is being done for example, I have the duty to navigate carefully and as safely as I can around that hazard in continuing my walk. I have a duty to avoid running into other pedestrians using the sidewalk. If I must cross the street, I have a number of additional duties I must fulfill.

Why do we have “duties” and “standards” by which we must act? Without them, no one would know what was expected of them and we would not be able to anticipate how to expect others to conduct themselves in given situations.

A car is traveling down a dark, deserted country road, approaching an intersection with a stop sign. The car does not stop at the stop sign and, instead travels through it at highway speed. No other cars were approaching the intersection at the time. Was the driver negligent? Did the driver deviate from the reasonable standard of care? The driver was negligent, but, luckily, caused no damage to anyone. So, if a police officer was around, a ticket would be issued, but nothing further.  So, was it excusable, since no one was hurt? Absolutely not. The same example, but the approaching driver does not see an approaching motorcycle. The motorcyclist is struck and killed. A completely different set of circumstances results, but culminate from the exact same perceptions on the part of the driver in the car. In both situations, the driver “honestly” saw no harm by running the stop sign.

This is particularly true for professionals. The public absolutely must be able to depend on certain standards of performance from professionals. For an engineer who constructs a bridge, we expect that the bridge will carry the weight reasonably expected and will not collapse with that weight. We expect that the professional will act in a manner expected from other similar professionals.

When a doctor decides to treat people, she decides to work within a reasonable standard of care accepted by other physicians. Does that mean if a physician or other professional makes a mistake that they have deviated from the acceptable standard of care? Not necessarily. It means that the professional is obliged to act reasonably as judged by similar health care providers.

If a patient arrives at the hospital with symptoms consistent with 3 or 4 different potential illnesses, it is the job of any physician to determine those illnesses, which are life threatening and try to eliminate or include those first. If the condition could be life threatening, the professional is obligated to continue their investigation until they can determine what course of treatment is best for the patient.

Physicians, like any professional, have pressures extraneous to their profession. In the case, of an engineer, it may be cost overruns and their client may be pushing to cut corners somewhere to minimize those cost overruns. With physicians, it may be a hospital or insurance company. It is the job accepted by the any professional to comply with the reasonable standard of care. In the case of physicians, it is to determine those patients who require hospitalization in order to determine their illness and those who do not need hospital care.

Professionals are required to reach reasonable, well thought, courses of action within their profession. They typically go through additional schooling to prepare them for evaluating a reasonable course of action.  The subject of a professional’s decision may seem complex, but their standard of care is no less real than the driver or pedestrian.

In his June 11, 1963 civil rights address, President John F. Kennedy confronted head-on the unfair treatment of African Americans in our society under our then-existing system of laws. President Kennedy, in imploring Congress to pass fundamental civil rights legislation, stated:

“…the old code of equity law under which we live commands for every wrong a remedy, but in too many communities, in too many parts of the country, wrongs are inflicted on Negro citizens and there are no remedies at law.”

Unfortunately, President Kennedy’s reference to our system of justice having the ability to remedy every wrong states only an ideal, but, sadly, not reality. Sometimes the difference between principle and truth is the result of legislative inaction or by legislative activism. Perhaps the most glaring example of legislative activism stripping away the “guaranteed” rights of citizens to have both their day in court and a remedy for every wrong can be seen in the medical negligence arena.

Let us examine the following two hypothetical scenarios.

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