A fight in Florida over access to malpractice suit papers has pitted the rights of patients to know their providers' track records against doctors' rights to protect their reputations and privacy.
The Florida attorney general in August issued an opinion requiring the Florida Health Department to make public intent-to-sue notices. Those planning to sue their practitioners must, under Florida law, file that notice with the practitioner and the Board of Medical Examiners. Even if the board doesn't find sufficient cause to start disciplinary procedures, patients still can take their cases to court, and those documents would be part of the public record.
Al Sunshine, the consumer reporter for WFORTV, the CBS affiliate in Miami, asked the state Health Department for intent-to-sue documents for a story he was compiling. The Health Department in turn asked the attorney general for an opinion on what had to be made public. The attorney general wrote that the notices were part of the public record.
That's when the Florida Medical Association, which wasn't involved in the release of the notices, asked a judge for an injunction barring the Health Department from releasing the information. The judge refused and told the parties involved to schedule a hearing in Florida state court on the issue.
"There is a paragraph within (Florida) statutes that says . . . that when the board receives complaints, they're not to be made public until 10 days after the doctor is formally charged" in a disciplinary proceeding, says Francesca Plendl, the FMA's associate general counsel. "What the attorney general's opinion says is that portion of the statute doesn't apply to presuit notices."
Sunshine says he knows that the medical community is concerned, and he notes that unproven allegations have to be fully researched. "We (the news media) have more of a burden to investigate allegations from a private layman" than charges filed by law enforcement, he says.
Although he acknowledges providers' concerns, he says he is a firm believer in the public's right to know as much as it can when choosing a healthcare practitioner.
The FMA intends to move the fight to the Florida Legislature when it convenes in March.
Until the provider is formally charged or formally sued, release of presuit
information doesn't help patients, Plendl says. "They're releasing unfounded allegations."
The FMA isn't challenging the release of records once a lawsuit has been filed or when the Board of Medical Examiners files a formal complaint, Plendl says.
The public can find out how many times a doctor has been formally sued, even if the doctor never was found liable, she says.