Hospitals Lose Battle Against Right-to-Know

Lakeland Ledger, 3/7/2008

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Patients have a right to check records on past mistakes made by their doctors and hospitals no matter how old those files are, a sharply divided Florida Supreme Court ruled Thursday.

The justices in a 4-3 opinion rejected an appeal from hospitals claiming access should be limited to records created since November 2004, when voters adopted a "patients' right to know" amendment to Florida's constitution.

They also declared unconstitutional parts of a law the Legislature passed that interpreted the amendment as applying only to future records. The ruling stemmed from conflicting decisions on retroactivity by two appellate courts.

"It sets forth a landscape where it's now clear patients can access the records the Florida public voted on," said J. Stanley Chapman, a lawyer for patients and relatives in three lawsuits covered by one of the appellate cases.

The ruling, though, will not affect Chapman's clients who sued the parent company of Lake City Medical Center. The parties settled after oral argument in the Supreme Court last year, Chapman said.

In the other case, Teresa Buster sued Florida Hospital Waterman Inc. in Tavares over her husband's death.

Her lawyer, Christopher Carlyle, said it didn't make sense that voters intended to have zero records available to them when they passed the amendment.

The unsigned majority opinion concluded the amendment was intended to apply to existing as well as future records because it refers to "any" records and "any" adverse medical incidents.

In dissent, Justice Charles Wells wrote the majority's view "is contrary to the law and fundamental fairness." He cited a state law that for more than 20 years has kept hospitals' peer review records confidential and prohibited their use in civil cases.

The theory behind the law is that hospitals could better find ways to prevent future mistakes if doctors and other medical staffers could speak in confidence about their past errors.

The ruling may end that practice, said Bill Bell, general counsel for the Florida Hospital Association, which participated in the case as a "friend of the court."

Former Supreme Court Justice Arthur England, now in private practice, made the same argument as Wells on behalf of Florida Hospital Waterman.

"It's harsh that the majority of the court said 'Yes, you shouldn't have relied on the statutes back then,'" England said.

England said the opinion left some issues unanswered but he had not not yet consulted with his client about seeking a rehearing.

The Florida Justice Association president Frank Petosa said the high court abided by voters' intent when they passed the amendment by 81 percent, the biggest margin ever for a citizen initiative.