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Florida Legislature 2005 (click for ongoing coverage)

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Patients' rights law narrowed

Supporters are dismayed that legislators have limited the scope of Amendments 7 and 8.

By LISA GREENE
Published April 29, 2005

Supporters of the patients' right to know amendment passed by voters in November promised it would allow Floridians to compare hospitals, finding out which had higher infection rates or made careless surgery errors.

Not anymore. And that has backers threatening to go to court.

The bill passed by legislators that put the amendment into effect gives access to medical records, but only in limited circumstances. People can't be merely curious or trying to compare hospitals before they decide where to go. Nor can they get broad access to a hospital's past mistakes.

Instead, the bill will allow them to get records once they already are patients in the hospital. And those records must be for the same condition that they are being treated for.

Lawmakers also narrowed the scope of a second medical amendment, which would take away doctors' medical licenses if they have three "strikes" against them for malpractice.

Trial lawyers, the biggest backers of the two amendments, which were on the ballot as Amendments 7 and 8, say the new versions aren't what voters intended, and that they likely will sue.

"The bottom line is, that's not what voters believed they approved," said Alexander Clem, president of the Academy of Florida Trial Lawyers. "The Legislature has essentially removed the teeth from Amendments 7 and 8."

But both bills passed with little opposition, and a spokesman for Gov. Jeb Bush said Bush believes legislators are "heading in the right direction."

Backers of the new bills say the amendments needed more specific definitions and that information to help people evaluate doctors and hospitals is publicly available elsewhere.

"The patient's right to know would have been a Pandora's box for litigation," said Dr. Dennis Agliano, a Tampa surgeon and president of the Florida Medical Association. "Now it's more narrowly defined."

For example, suppose a Florida patient needs gall bladder surgery. Supporters envisioned that the patient could ask local hospitals for records on past medical mistakes on a variety of topics.

Which patients got infections from surgery? Did surgeons leave sponges inside any patients? Did patients get the wrong medication? Then patients could use that information to decide which hospital would be best for them.

The new bill defines who is a patient more narrowly. To get records, the patient would already have to have picked a hospital. And he could get records only for his condition. For example, patients who are admitted to have their gallbladders removed could find out how many times hospital surgeons cut the main bile duct, a common mistake when removing gallbladders. They also could find out about infections resulting from the surgery.

But infections from other surgeries, bad medicines, how many times the hospital operated on the wrong leg or mixed up patients - all would be off limits.

Doctors say that supporters want to force hospitals to turn over information to lawyers pursuing malpractice cases, and that the law would hurt patient safety. Doctors would be afraid to criticize their peers for fear that records would become public and get them dragged into court, they said.

"The public has to understand, doctors have no problems with patients (seeking information)," Agliano said. "The problem is with the witch hunt."

Sen. Durell Peaden Jr., chairman of the Senate Health Care Committee and a sponsor of both bills, said that comparative information already is available. The state Agency for Health Care Administration is working on a public database of infection rates at state hospitals.

The federal government also has a new Web site, www.hospitalcompare.hhs.gov that compares how hospitals perform on some common procedures. Private companies also rate hospitals.

"You're sort of invading somebody's privacy, and looking at somebody else's records," even if the patient's name is blacked out, if other patients get specific case reports from hospitals, said Peaden, R-Crestview.

Opponents say, however, that the state agency is moving too slowly, and that the amendment would have made more information public.

The bill is so restrictive that the average citizen will have a hard time getting records, said Rep. Arthenia Joyner, D-Tampa, one of three House members who voted against the bill.

"It's so narrow that if a lay person wants to know, they really almost need to ask a lawyer to help write the request," she said.

The new version of Amendment 8, the three strikes amendment, also is more narrowly tailored. The amendment said doctors would lose their licenses if they got three "strikes" against them for malpractice - either final disciplinary actions by the Board of Medicine or a legal judgment. The new bill gives the board power to decide whether a court verdict shows "clear and convincing" evidence of malpractice and should be considered a strike.

"The trial lawyers will say you're basically allowing the fox to continue to guard the henhouse," said Jay Wolfson, director of the University of South Florida's Suncoast Center for Patient Safety Research.

"But the other side of that is, not every judgment against a physician is a reflection of bad medical care. We still do not do a good job in distinguishing bad outcomes from medical negligence."

The new version also specifies that the law won't be retroactive. Judgments and disciplinary actions from before Nov. 2, 2004, when voters passed the measure, won't count.

[Last modified April 29, 2005, 00:52:25]