Patient Access to Adverse-Incident Reports Threatened
Florida’s Constitution Revision Commission has on its 2018 agenda a proposal to amend a provision that gives parties in medical-malpractice lawsuits access to adverse-incident reports that can make or break cases.
The proposal, made by Commissioner Tim Cerio, seeks to limit such access for the sake of privacy. Cerio said an increase in the number of medical-malpractice lawsuits and each of their subsequent rulings have led to a broader interpretation of what adverse-incident reports actually are, resulting in the release of additional documents exposing healthcare providers and hospitals.
“There has been a stream of cases that have expanded basically the impact of Amendment 7 and created an ability for litigants to get at information that was not intended,” he is quoted as saying in an article by The News Service of Florida posted on the Health News Florida Web site titled “Medical Malpractice Records Battle Brews.” “Attorney-client work product is sacrosanct, and for the courts to expand that, I think, is not a good reading of the original intent of Amendment 7.”
Amendment 7, which Sunshine State voters approved in 2004, establishes patients’ rights to obtain adverse-incident reports from doctor’s offices and other medical institutions to make informed choices. In 2017, the issue notably was taken up twice by the Florida Supreme Court, and in both cases, patients’ rights were upheld. In a case involving Bartow Regional Medical Center, whose attorney prepared such documents using outside counsel because of a threat of litigation, Justice R. Fred Lewis opined the act “a trap door through which hospitals could totally avoid their discovery obligations by outsourcing their adverse medical incident reporting to external, voluntary risk management committees separate from those required by the Florida statutory scheme,” according to The News Service of Florida article. In a second case involving Baptist Health System in Jacksonville, the court ruled that the hospital was not shielded by a patient-safety law from handing over adverse-incident reports.
“Be It Proposed by the Constitution Revision Commission of Florida: Section 25 of Article X of the State Constitution is amended to read:,” states the prelude to Cerio’s proposal. It goes on to say, “The phrase “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…unless otherwise protected by federal laws or regulations relating to patient safety quality improvement.” It concludes, “This section does not abrogate attorney-client communications or work product privileges for patients, health care providers, or health care facilities.”
Sunshine State voters might find themselves returning to the polls to vote on the proposal, which pulls the rug out from under patients’ rights, hindering justice.
“In the recent past, doctors and other medical providers in Florida were heavily protected from negligence actions, which included limitations on certain documents which were “discoverable” and on noneconomic damages (pain and suffering, disfigurement, permanent disability, etc.),” according to a Daily Business Review article titled “Patients Have an Absolute Right to Know: Another Win for Patients in Med Mal Claims.” “This often limited injured patients in not only proving their cases and the amounts they could recover, but also in finding a lawyer to take their case. However, the tides are beginning to turn in favor of patients.”
However, a ballot initiative could go either way, especially in politically charged Florida. The Constitution Revision Commission to which Cerio – one of 37 commissioners – belongs is a governmental entity that meets every 20 years to examine the Constitution and proposing changes to it. Appointments to the commission are made by the governor (15 seats), the Senate president (nine seats), the House speaker (also nine seats) and the Florida Supreme Court chief Justice (three seats). The remaining seat automatically belongs to the state’s attorney general.
“The CRC meets for approximately one year, traveling across the State of Florida, identifying issues, performing research and possibly recommending changes to the Florida Constitution,” the commission’s Web site states. “As part of this process, the CRC holds public hearings to learn about issues that matter most to Floridians and considers proposed constitutional amendments submitted by the public. Any proposals that pass the CRC’s final vote would be placed on Florida’s General Election ballot (November 6, 2018) and must secure at least 60 percent voter approval to become law.”
Voters who oppose the proposal and instead advocate for patients’ rights are encouraged to get involved by submitting a comment, emailing Cerio directly, speaking at a public hearing or reaching the commission on social media.