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January 9, 2009 |
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| October 30, 2008 |
By: Bud Newman |
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oth state appellate courts in South Florida have decided questions refining the practical scope of a state constitutional amendment that expanded patient access to hospital records in disputes over medical incidents.
The 3rd District Court of Appeal in Miami last week unanimously overturned a Miami-Dade Circuit Court ruling that would have required Baptist Hospital to answer interrogatories seeking the credentialing files of two doctors in a malpractice case filed after a patient’s death.
The three-judge panel determined those files are exempt from Amendment 7, which passed in 2004 under the Patients Right to Know About Adverse Medical Incidents.
The 4th District Court of Appeal in West Palm Beach unanimously ruled the same day that peer review records could be released for use in a defamation suit between two doctors. The records request came from a patient of one doctor suing another at the now-defunct North Ridge Medical Center in Oakland Park.
The appellate panel rejected the hospital’s claim that releasing the material would not serve “a proper purpose” as the amendment required.
Both courts were addressing questions that arose after the Florida Supreme Court split 4-3 in March, ruling the amendment applies retroactively to hospital documents created before passage.
Florida Hospital Association general counsel Bill Bell in Tallahassee said the impact of the Supreme Court decision is “still muddy.” Circuit court rulings have been “all over the board” about which documents are relevant and releaseable in pending medical malpractice cases.
There has been some consistency in defining an adverse medical incident covered, and most cases are holding that “attorney work product and attorney-client privilege are alive and well” and have not been undermined by the amendment, Bell said.
Orlando attorney Michael D’Lugo with Wicker Smith O’Hara McCoy & Ford, who handled Baptist’s appeal, said, “We’re still early in the process, and we’re seeing courts make different types of decisions” applying Amendment 7.
With clarifying lawsuits still in play, records have not been pouring out of hospitals.
Miami personal-injury litigator and appellate attorney Lincoln Connolly of Rossman Baumberger Reboso Spier & Connolly, who was not involved in the two appeals, said the health care industry is “still fighting” Amendment 7.
“More and more courts are rejecting delaying tactics by hospitals and health care providers,” he said. “More and more circuit courts are ordering that those records be released to the public.”
At least 15 circuit courts have issued orders dealing with document requests since the state’s high court ruled, said Miami attorney Stephen Bronis of Carlton Fields, one of three firms that filed the federal suit . Bronis was on the losing side of the Supreme Court decision.
Some circuit judges have ruled the court is the proper gatekeeper, while others ruled the records must be released whether or not they are relevant to a pending case.
“Some have said [attorney] work product is protected, and some have said Amendment 7 trumps,” Bronis said. “There are a number of issues that are out there that are percolating around the state. The judges have to work through all of this and make decisions.”
The fight has been taken to a new arena.
In July, the Florida Hospital Association and the Florida Medical Association joined about four dozen hospitals, health care facilities, doctors and private citizens in a federal lawsuit challenging the constitutionality of Amendment 7 on pre-emption grounds.
The health care industry is suing the state Department of Health, Agency for Health Care Administration and the attorney general’s office in Tallahassee, claiming the measure “is expressly pre-empted by, conflicts with congressional policy in and represents an obstacle to the accomplishment of federal statutes governing the medical review process.” The suit also claims the amendment violates the rights of health care providers “to informational privacy” and impairs contracts.
Deciding how the measure should be implemented is “still a process that’s very fluid,” said Bronis.
At the state appellate level, 3rd DCA Judge Richard Suarez wrote an opinion Oct. 22 quashing a disclosure order by Miami-Dade Circuit Judge David Miller in a malpractice case brought by Yolanda Garcia, who is suing Baptist and two doctors who worked there over the death of her husband, Daniel LeMaitre. Judges Gerald Cope and Linda Wells concurred.
In the 4th DCA case, the unsigned opinion by judges Larry Klein, Robert Gross and Melanie May upheld an order by Broward Circuit Judge Carol-Lisa Phillips requiring North Ridge to produce the records for former patient Stacey Daley.
The court also found she has the right to give the records to anyone, including the attorney for the doctor who filed the defamation suit.
Bronis said he was troubled by the 4th District case because it takes the amendment “to a level it was never intended to be at” and poses “a whole Pandora’s box of danger.”
Bud Newman can be reached at (561) 820-2075. |
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