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Letter to the editor

Give public the access it demanded

By A TIMES EDITORIAL
Published June 10, 2007

After having lost at the ballot box in 2004, doctors and hospitals are asking the Florida Supreme Court to play voters for fools. The notion that the constitutional amendment was intended to disclose records only of doctors' future medical mistakes is deserving of little more than a legal guffaw.

The doctors' argument is more than a little desperate. They are still smarting from the counterpunch they absorbed when they challenged lawyers' fees at the ballot box that same year. In return, the lawyers pushed an initiative that asked voters to remove the secrecy that had surrounded so-called "adverse medical incident" records. The amendment, approved by 81 percent of voters, granted patients the "right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident."

Unfortunately, the Legislature is part of the conspiracy in this case. It passed a law in 2005, at the behest of medical lobbyists, that directly undermined the intent of voters. The law not only narrowed the scope of potential records but also deemed any past record to be exempt. In other words, a patient who wanted to know whether a doctor had any skeletons in the closet would be kept in the dark.

During oral arguments Thursday, Justice Barbara Pariente observed the absurdity of declaring past records exempt. "The day after (the amendment passed), the patient has the right to get the records, " Pariente noted. "(But) there are no records that they would have the right to get."

Even if justices were to assume voters to be fools, they could not properly rule that past medical records can remain exempt. As the opposing attorneys in this case noted, courts often are asked to declare whether a government document qualifies as a public record. The decision is based not on when the document is produced but whether its disclosure is consistent with law, or in this case, constitutional mandate.

Medical mistakes enjoy no special privilege of confidentiality, and this constitutional amendment explicitly calls for their disclosure. The court needs to listen to reason, not the bellyaches of doctors.

[Last modified June 9, 2007, 19:57:51]