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    For a Better Florida

    Patients' rights left out of malpractice debate

    As doctors and lawyers battle over a proposed cap on medical malpractice awards, the people affected - patients - often remain in the dark about what happened to them and why.

    By ALISA ULFERTS, Times Staff Writer
    © St. Petersburg Times
    published March 2, 2003


    TALLAHASSEE -- Robert Taylor spent three months trying to find out why he lost part of his right foot after what was supposed to be routine knee surgery.

    "No one would tell me anything except that something went wrong during the operation and they fixed it," the Jacksonville resident said. It wasn't until he hired a lawyer that he learned doctors had missed a blood clot in his leg. A week after the original surgery doctors removed part of his foot and Taylor lost 90 pounds in the next 90 days from further complications.

    Taylor said he hadn't planned to sue but decided that was the only way he was going to get any answers.

    "When the hospital has stonewalled you and the doctor has stonewalled you, where do you go? You go to someone who has the knowledge and the expertise to go after them," Taylor said. He sued several Jacksonville-area hospitals that had treated him, including Baptist Medical Center-Beaches, where he had the surgery, and settled for an undisclosed amount. By law, a copy of his lawsuit went to the state for investigation, but Taylor said he never heard from the state.

    This year's medical malpractice debate has turned into a back-and-forth between insurance companies and trial lawyers. Doctors and their insurers blame lawsuits for soaring insurance premiums, forcing specialists like obstetricians to close shop or go without insurance. In a high-risk field like obstetrics some doctors have seen their insurance premiums rise as high as $100,000 for a policy that's worth $250,000. Lawyers say doctors and hospitals put profits before patients and they blame stock market losses for the insurance industry's rise in premiums. According to the Florida Medical Association, two years ago 40 companies wrote medical malpractice policies in Florida; this year it's down to four.

    A 14-volume report published by Gov. Jeb Bush's task force lists myriad solutions to the crisis, but the centerpiece is a $250,000 cap on what juries can award for pain and suffering.

    Missing from the discussion is what victims of medical malpractice say they are really looking for: answers to what happened to them.

    "I'm not a dummy," Taylor said. "I know that when I went in for a knee replacement and all of a sudden I was missing part of a foot, something was wrong."

    Doctors and hospitals call what happened to Taylor an "adverse incident." That covers such things as an unexpected death, leaving a surgical tool inside the body and amputating the wrong limb. A hospital must inform the state about any adverse incident and whether it suspended a doctor's privileges or if a doctor left a hospital to avoid being suspended.

    But such information is kept from the public, including patients who were harmed. (One exception is for reports on adverse incidents that occur in a doctor's private office, and doctors have tried for several years to seal those.) Unless the state decides there is probable cause to go beyond a preliminary investigation, which it did in just 3 percent of all complaints filed from July 2001 through June 2002, the victim never finds out why his or her complaint was dismissed. State officials say the number of complaints filed that year, and the percent that resulted in probable cause, is typical of the cases filed each year. Under state law, complaints about doctors become public only if investigators decide there is enough evidence to pursue possible sanctions. Dismissed complaints remain sealed.

    That leaves patients with one recourse: to sue. That gives them the power to force doctors, nurses and others involved to explain, under oath, what happened.

    But subpoenaing people is expensive, and many lawyers say they can't even bring a case to court for less than the proposed $250,000 cap in pain and suffering penalties. "If you take away those lawsuits you take away any checks and balances," said Miami lawyer Gary Cohen. In his 23 years of medical malpractice litigation and thousands of cases, Cohen said the state has found "probable cause" to further investigate a doctor in just one of his cases.

    Every time a lawsuit is filed against a doctor or hospital a copy is sent to the state to investigate. In the rare cases when state investigators call him about a complaint, Cohen said, they almost always ask him for copies of depositions and other records related to the lawsuit.

    "There is no regulation. There is no regulation to speak of . . . unless you cut the wrong leg off," Cohen said. The solution: People who file complaints should be able to see the investigative file, which could include interview notes with the doctors, nurses and administrators involved, regardless of what the state Board of Medicine decides.

    "Who deserves that information more than the victim?" Cohen asked.

    Opening up the complaint process isn't a new idea. Five years ago, then Department of Health Secretary James T. Howell told lawmakers that victims of malpractice should have the right to know why the state decided not to pursue sanctions against their doctor. (In contrast, lawyers point out that the Florida Bar will tell clients about pending complaints against their lawyers, and that those complaint files are public whether the lawyer is punished or not.)

    "I believe that the availability of this information would serve to help consumers make better health care decisions and strengthen the public's confidence in our government," Howell wrote.

    The bill would have allowed complainants to view the investigation files once the state decided there was reason to dig deeper or the investigation was closed. Patients inquiring about a doctor would also be told about pending investigations, although not in detail, unless the state thought the disclosure would jeopardize the investigation.

    It can take months or even years for investigators to complete their work, during which time they are prohibited from divulging any information about the investigation, even to the victim, legislative analysts said at the time.

    "This situation has placed these agencies in the position of being legally required to deny the existence of complaints, even though there could be dozens of them, all with overwhelming indications that the professional might be a danger to the public," wrote staffers with the House Business Regulation and Consumer Affairs Committee.

    "Furthermore, the consumer, by having inquired and been told that no such complaints exist, is lulled into a false sense of security and can be expected to be legitimately outraged when the existence of the violations eventually comes to light (once probable cause determination has been found)."

    But doctors and construction contractors, whose complaint files also would have been opened by the bill, persuaded lawmakers to kill the bill.

    And they're just as much against it now as they were then.

    Robert Cline, president of the Florida Medical Association, says allowing patients to view their complaint files is not the answer. Hospitals would be less likely to report an adverse incident if the information could become public, Cline said. "If you want to get good reporting you have to keep it confidential," Cline said.

    Even if the state decides not to discipline a doctor and closes the case, the patient filing the complaint could take those records, if they were opened, to a lawyer anyway, Cline said. "And that gets on the front page," Cline said.

    The Florida Department of Health keeps detailed profiles of doctors in the state on its Web site (www.doh.state.fl.us/) but it relies on the doctors to report if they've ever been disciplined in another state or by an independent medical specialty board. The profiles note if a doctor has been disciplined in Florida, minus the details, but they specifically exclude information about revoked hospital privileges. The profiles also note if a doctor has been successfully sued.

    Advocates for patients note the secrecy surrounding medical mistakes even extended to a legislative commission. Concerned about the state and availability of health care in Florida, lawmakers in 2000 created the Commission on Excellence in Health Care, a task force charged with taking testimony around the state. Buried within the bill creating the commission was the following paragraph: "No person who testifies before the commission or who is a member of the commission may specifically identify any patient, health care practitioner, or health care provider by name."

    When people testifying before the commission ignored that direction and identified doctors or hospitals anyway, they were interrupted.

    "I would caution you against that level of detail in your comments in this commission," Ruben King-Shaw, then-secretary for the Agency for Health Care Administration, said on Sept. 26, 2000.

    The only way for the public to judge whether medical regulations are effective is to open investigative files, says First Amendment lawyer Jon Kaney.

    "How do we hold the finder of no probable cause accountable?" Kaney asked. He said there should be nothing secret about medical mistakes, and disagrees with Cline's statement that hospitals won't report mistakes if they think they'll become public. That's breaking the law, Kaney said.

    "The argument to create exemptions in order to coax people, to pamper people into complying with the law is outrageous," Kaney said.

    But FMA lobbyist Sandra Mortham, the former secretary of state, said opening up the complaint process shouldn't be as high a priority as getting patients access to critical services like mammograms.

    "I'd like to be able to get my mammogram. I'm not concerned about adverse incidents or public records. As a consumer, I don't think that's the issue," Mortham said.

    -- Alisa Ulferts covers state government for the St. Petersburg Times.

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