Q: There seems to be a lot of secrecy in the medical community. I think I should at least be able to find out if a doctor is guilty of malpractice as part of my decision about medical treatment. Is there a way to get malpractice records?
A: In 2005, Florida voters adopted what is known as Amendment 7. Amendment 7 actually created new Section 25 under Article X of Florida’s Constitution.
Amendment 7 provides patients with a right to access “any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” An adverse medical incident is defined as medical negligence, intentional misconduct and any other act that caused or could have caused injury to or death of a patient. Such incidents include, but are not limited to, those that must be reported to any governmental agency or body by State or Federal law, and incidents that are reported are reviewed by any health care facility peer review, risk management quality assurance, credentials or similar committee. Identity of the patients involved shall not be disclosed and any privacy restrictions imposed by Federal law must be maintained. Otherwise the records are to be made available for inspection and copying.
After Amendment 7 was adopted by the voters, the Legislature adopted Section 381.028 of Florida Statutes known as “Patients’ Right – to – Know About Adverse Medical Incidents Act.” The statute expands some of the definitions in the constitutional amendment and clarifies procedures.
As might be expected, law suits were filed as people attempting to exercise their new Constitutional rights. In those cases, medical care providers or their insurers challenged constitutionality of the Amendment, Statute or both and attempted to limit their scope. Florida’s various appellate courts disagreed with respect to many of these issues.
Earlier this year, the Florida Supreme Court settled some of the major areas of dispute. In that case, hospitals objected to production of adverse medical incident information claiming the information was confidential under various statutes that existed prior to passage of Amendment 7. They also argued that Amendment 7 only applied to records created after the date it was passed.
The Court determined that Amendment 7 was intended to override existing statutes limiting access to these records. It noted the Legislature’s statement of purpose explained that the Legislature had previously adopted restrictions on availability of their records and that those restrictions interfered with a patient’s right to know about adverse medical incidents. The ballot summary by which voters approved Amendment 7 also explained a clear intent to do away with existing restrictions.
The court then addressed the retroactive application issue.
The Court explained that two areas are considered when determining if a law should be retroactively applied. First, is whether there is clear evidence of the legislature’s intent. If retroactive intent is clear, the Court must then determine if retroactive application is Constitutionally permissible.
The Court found clear intent for retroactive application because its purpose was to provide access to records that would necessarily involve action prior to the effective date of amendment. The statement and purpose for the law as adopted by the Legislature as well as the ballot summary established that purpose of the amendment was to do away with existing restrictions on a patient’s right to access a medical providers history of adverse medical incidents.
The Court also found that the second test was passed. The amendment would only be barred from retroactive application if it impaired a Constitutionally protected vested and substantive right. Medical care providers have no vested right in secrecy concerning these types of records.
The Court concluded by stating Amendment 7 heralds a change in the public policy of Florida to lift the shroud of privilege and confidentiality to foster disclosure of information that will allow patients to better determine who they want to treat them.
Although the amendment and statute mandate that these records be made available, you may still face opposition, foot dragging or other obstacles. As in all legal matters, assistance of a qualified attorney will likely be of substantial benefit.
William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to email@example.com or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.