Cressman Law Firm, P.A.

The Florida Supreme Court sided with patients and consumers of healthcare in the State of Florida on March 6, 2008 despite the attempts by the insurance industry, and the medical community to curtail the rights of patients to know about adverse medical incidents involving healthcare providers.

On March 6, 2008 the Florida Supreme Court held in Fla. Hospital Waterman, Inc. v. Buster, No. SC06-688; and Notami Hospital of Fla., Inc. v. Bowen, No. SC06-912 (Fla. 3-6-2008)that Article X, Section 25 of the Florida Constitution is not only constitutional, but is also self-executing and applies retroactively to documents which were in existence prior to the passage of the Amendment to the Florida Constitution.

Voters in the Florida may recall that this issue was known as the Patients Right To Know” Act, and was on the ballot in the 2004 election known as Amendment 7. The purpose of Amendment 7 was to provide access to adverse medical incidents involving healthcare providers so that patients and consumers of healthcare were able to make informed decisions as to whether they wanted to be admitted to certain hospitals, or be treated by certain physicians with regard to their healthcare. The amendment passed with overwhelming support by the Florida electorate (over 80% of the voters in Florida supported the passage of the amendment).

After the passage of Amendment 7 by the voters of Florida, the Republican led Florida Legislature bowed to pressure of special interest groups from the hospital, insurance and medical communities and passed several bills which were enacted as Section 381.028, Florida Statutes (2005). The sole purpose of the enactment of this statute was to thwart the will of the people and continue to protect the healthcare industry and ensure the healthcare industry in Florida would not have to disclose the fact that adverse medical incidents occurred in their facilities or hospitals. The Republican led Florida Legislature also sought to limit the effect of Amendment 7 by stating that the amendment would not apply retroactively.

The Florida Supreme Court agreed with the two of Florida’s District Courts of Appeal that the text of Amendment 7 on its face provided a sufficient rule by which patients would be able to gain access to records of a health care provider’s adverse medical incidents. The Florida Supreme Court went on to note that the amendment expressly provided that it would be effective on its passage without the need for legislative action. It was despite this language in the amendment that the Florida Legislature passed Section 381.028, Florida Statutes (2005), and tried to in essence gut the effectiveness of Amendment 7.

As for the retroactivity of Amendment 7, the Florida Supreme Court held that it provided access to existing records and histories of adverse medical incidents. In doing so the Court noted that “Medical providers’ interest in the continuing confidentiality of these materials does not constitute a substantive right.” It also noted that that Amendment 7 clearly encompassed access to existing adverse medical incident reports.

Despite the attempts of the Florida Legislature and the special interests which have been controlling the passage of legislation from 1999 through 2007 to protect the special interests of Florida, including the insurance industry, “big business,” the healthcare industry other related industries, and their efforts defeat any legislation meant to help or otherwise protect consumers in the State of Florida, the Florida Supreme Court has chosen to side with the citizens of the State of Florida. No doubt we will once again hear about “activist judges” and the Republican led Florida Legislature will once try to gut the decision of the Florida Supreme Court. For now though, the citizens and consumers of the State of Florida have won the battle and are entitled to see, review and consider the history of adverse medical incidents when making decisions about their healthcare.

If you believe you have been the victim of medical malpractice or medical negligence, or were injured as a result of what you believe may have been an adverse medical incident, you should immediately contact an experienced medical malpractice attorney who can help investigate and potentially recover the damages you may be entitled to as a result of the negligence of a health care provider.

Read the full opinion of the Florida Supreme Court in the Florida Hospital Waterman, Inc. v. Buster here.