During the November elections, Florida residents went to the polls and voted to add two amendments to the Florida Constitution. Amendment 7 (“Right to Know”) allows patients or representatives “to know and have access to records of a health care facility’s or provider’s adverse medical incidents, including medical malpractice and other acts which have caused or have the potential to cause injury or death.”
Amendment 8 (the “Three Strikes” Rule) states that a medical doctor found to have committed three incidents of malpractice would lose his or her license to practice. This could be based on findings from civil court, an administrative agency, or binding arbitration in Florida, in another state, or in another country.
It’s no wonder that they passed. After all, who wouldn’t want to be able to have access to previous medical records in order to determine, for example, the safety level of a facility where you’re considering going for care? And with nearly 195,000 people in Florida being killed each year by medical mistakes, why indeed shouldn’t a doctor who has been charged with three malpractice issues be forbidden to practice? But as is often the case, the situations are not quite as simple as they seem.
Bill Bell, who has been general counsel for the Florida Hospital Association for the past 25 years, says that neither of the amendments is self-implementing, meaning that “they are not specific enough for courts to understand how to interpret them. There are questions about them and they need additional legislation to make them effective.”
He explained some of the questions surrounding these two amendments: “For 7, some of the concerns are, is it retroactivedoes it apply to records prior to last November (the time of the election)? Or, even though a patient can get information, can it be used in litigation? And what types of records are included?
“The amendment is very broad. You could disrupt a hospital into doing nothing but record searches. And how (much time) does a provider have to provide the records, and how much can they charge to get them? What type of information can a patient request, or could a newspaper acting on behalf of a patient request something?”
And these questions don’t even address the concern of patient anonymity. “We have several federal laws that have to be followed,” he said. The reference was to HIPAA, the Health Insurance Portability and Accountability Act that created national standards to protect individuals’ medical records and other personal health information. Bell added that a person’s name is just one of 18 patient identifiers that must be concealed before records can be released. Among some of the others are social security numbers; any dates relating to an individual, including admission or discharge dates; medical record numbers; vehicle identifiers and serial numbers, including license plate numbers; and phone and fax numbers, and e-mail addresses.
The questions regarding Amendment 8 are equally numerous. As with Amendment 7, the idea of whether it’s retroactive must be asked. Another example stems from the fact that the malpractice issue might be based on findings in another state or another country. But how is it possible to compare the standard of care in other countries? Other issues include whether a single act of negligence that injures three parties counts as all three strikes.
Also, the amendment does not clearly define “medical doctors.” Does that encompass dentists, chiropractors, and the like? And it does not distinguish between negligence that causes permanent injury or a slight, temporary discomfort. As Bell asks, “You can have an individual who is 100 percent negligent, or 1 percent negligent. Does (the latter) count as a strike?”
But now that the amendments have been passed, what can be done? That’s where the Florida Hospital Association steps in. The FHA is a not-for-profit organization that represents all types of hospitals throughout the state. Its membership includes more than 215 hospitals and more than 1,800 professional members. With offices in Tallahassee and Orlando, as well as one in Washington, D.C., the FHA works through advocacy, education, research, representation, and service, and has as its mission statement “to promote the ability of member hospitals and healthcare systems to effectively and efficiently service the healthcare needs of their communities.”
Bell said that prior to the election, the FHA “provided hospitals and state-wide media with our position on (the amendments), but our analysis was that they were going to pass.” Now that that has happened, he continued, the FHA is following two tracts: “First, we filed lawsuits against both amendments, seeking courts to rule that they are not self-implementing. We are also seeking legislation to clarify them; there are a number of questions about how they should be implemented. It would be difficult for a health care provider to go forward with Amendments 7 and 8 without legal help and legislation.”
Bell said the FHA is also providing hospitals with information in case they become involved in local court action, and educating hospitals and medical staffs on the protection that is still currently in place for them. So far, Bell and the FHA have seen some positive results from their efforts.
“We did receive a favorable court decision on Amendment 8, when the court granted a temporary injunction until the legislators can pass legislation. And there was a decision (recently)a court in St. Petersburg ruled that Amendment 7 was not self-implementing, and all existing statutes are to remain in place.”
Bell anticipates more court decisions to be made in the near future. One reason for their concern about the vagueness of the amendments is that physicians may feel the risks aren’t worth it, and simply leave Florida or choose not to come to Florida to practice, thereby reducing patients’ access to high-quality health care.
