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Is sunshine the best disinfectant for errors?

Published October 31, 2004

If only patients knew more about hospitals' past mistakes, Jacqueline Imbertson thinks fewer of them would die.

But if hospitals knew their private safety worries could become public, Dr. Bruce Day is convinced fewer doctors would talk about such worries and hospitals would be less safe. Both say they are deeply concerned with patient safety. But Imbertson supports Amendment 7 on Tuesday's ballot and Day opposes it.

Imbertson says her husband was disabled and nearly killed by a South Florida hospital's carelessness. Day is on the staff of three different Pinellas hospitals and routinely reviews internal safety concerns.

Amendment 7 to the Florida Constitution would force hospitals and doctors to give patients records about past medical mistakes that either led to or could have led to patients being hurt or killed. Hospitals already are required to report much of that information to the state, but most of it remains confidential.

The amendment is one of three dealing with medical malpractice and safety issues. It has been overshadowed by the noisier fight over Amendment 3, which would limit lawyers' fees in malpractice cases. Doctors and lawyers are spending millions debating that measure, trying to sway voters with a series of costly TV ads, direct mailings and even banner planes. Amendment 3 is pushed by doctors, while 7 and 8 are backed by trial lawyers.

Why the difference? Because Amendment 3 is where the real fight is, said Daniel Smith, associate political science professor at the University of Florida. Polls have shown strong support for Amendments 7 and 8, while a recent St. Petersburg Times-Miami Herald poll showed a slim majority backing 3.

"What you're seeing is the strategy of the trial lawyers, to say, we have 7 and 8 locked up, let's go after 3," Smith said. "I think the (Florida Medical Association) realizes 7 and 8 are going to pass so they're not going to throw money down that hole."

Doctors have another disadvantage as well: less cash. Of the $27-million raised in the doctor-lawyer war, nearly $20-million has gone to Floridians for Patient Protection, the group linked to state trial lawyers.

Despite the furor on 3, Amendments 7 and 8 could have broad effects on how malpractice cases are fought and how patient safety questions are framed. And while lawyers say Amendment 3 would make it harder for patients to bring malpractice cases, 7 and 8 could make it easier.

Under Amendment 7, lawyers would have easier access to records about their own cases and past incidents. Under Amendment 8, doctors who have three "strikes" (state disciplinary actions or malpractice court judgments) against them would lose their licenses. Opponents say that would pressure even good doctors to settle.

Imbertson, president of Floridians for Patient Protection, which sponsored Amendments 7 and 8, says patients should know more about medical errors and doctors' histories.

"It's a very important opportunity for patients ... so they can see who they're choosing has the best record," she said. "We have better consumer protection avenues in all but health care."

Imagine, Imbertson said, if you were choosing between surgeons. Wouldn't you want to look up who has a better record? Or, if you were choosing between hospitals, wouldn't you want to look at the hospital's infection rate and past safety mistakes?

Some of that information already is public and accessible online. For example, the state has records of doctors' disciplinary records, academic background and specialties online at www But Imbertson said those records aren't detailed and complete enough.

"It's falling short of what is necessary," she said. "It's critical that people know more about the most important aspect of their lives."

The reports that hospitals file with the state are kept confidential. The incidents become public only if the state takes action against the hospital. That happened, for example, last week, when the state released a report on safety problems it found during an inspection of Sarasota Memorial Hospital. Safety advocates say the state makes such reports too infrequently.

Five years ago, Imbertson's husband was hospitalized for a heart procedure. Instead of receiving a drug to increase his blood volume, he was given a powerful medication that made his heart stop, Imbertson said. Because of what happened, he had to get a heart transplant and remains disabled.

It was only afterwards, Imbertson said, that she learned information about problems with other patients' treatments at the hospital that would have led them to go elsewhere.

But Day sees things from a different perspective. Day, a family practitioner, is on the staff of three Pinellas hospitals - Palms of Pasadena, St. Anthony's and St. Petersburg General. A past chief of staff at Palms, Day often serves on peer review committees, groups that review doctors' patient care, studying possible problems and recommending ways to improve.

If Amendment 7 passes, all that could change. Day said he might quit hospital staffs so he won't have to do peer reviews, and that he's talked to other doctors who feel the same.

The reason: He's afraid Amendment 7 would force hospitals to turn over records of those confidential reviews. Then, he said, he and other doctors who participate in peer reviews to try to make hospitals safer could be repeatedly hauled into court, forced to testify against their colleagues.

"One of the main tenants of peer review is that what you say is in the strictest confidence," Day said.

Hospital officials see the same problem.

"It sounds good," said Bill Bell, general counsel of the Florida Hospital Association. "But if you make those discussions public, there is a real fear that those discussions won't take place."

But Mark Riordan, press secretary for the patient protection group, said the doctors' argument is a scare tactic. The amendment wouldn't apply to hospitals' internal records and would require state legislators to pass more specific legislation for it to take effect, he said.

"Peer review will always be confidential," he said. "They're trying to confuse the issue."

Professor Jay Wolfson, director of the University of South Florida's Suncoast Center for Patient Safety Research, opposes all three amendments. They're more about doctors and lawyers trying to punish each other than to improve patient safety, he says.

Wolfson is among many patient safety advocates who say medicine needs to look to aviation to create a confidential system for reporting mistakes and near-misses. Amendment 7 goes in the wrong direction, he said.

"If you create a system which identifies everybody and what they do, the likelihood of accurate reporting diminishes," he said. "The conspiracy of silence will be enhanced."

Studying mistakes to look for ways to avoid systemic problems is more important than punishing individuals who make isolated mistakes, Wolfson argues. For example, realizing the hospital needs to have strict policies to check the name of each patient is more important than punishing the doctor who operated on the wrong patient in a hospital lacking such policies.

But Dr. Sidney Wolfe, health research director at the national advocacy group Public Citizen, said Amendment 7 is a step in the right direction, as long as the laws and regulations that carry it out are well crafted. Doctors make a fair argument that not every internal hospital record should be public, he said. But patients deserve to know about serious incidents.

"It's a good idea for patients to have more information than less," he said. "The intent of this law is to move in this direction. It just needs to be done carefully."

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