In November 2004, the Florida electorate voted to open hospital records on harmful errors and pull the licenses of doctors at fault in multiple malpractice incidents. Lawsuits arose quickly. Hospitals warned the voter-endorsed initiatives would cripple safety improvement. Doctors threatened an exodus of high-risk specialists.
Now two Florida bills -- which awaited Gov. Jeb Bush's signature at deadline last week -- may hand the state's doctors and hospitals a substantial victory in their effort to curb the scope of last November's successful ballot initiatives. Healthcare officials say the bills offer much-needed clarification for the two popular constitutional amendments, known as No. 7 and No. 8.
Amendment No. 7, dubbed the "patients' right to know" bill, increases public access to records on medical mistakes or adverse events. The "three strikes" bill, amendment No. 8, prohibits doctors at fault for more than two malpractice incidents from practicing in Florida.
Bill Bell, general counsel for the Florida Hospital Association, said he anticipates Bush will sign both bills, which say that neither amendment can be retroactively applied to cases that occurred before the Nov. 2, 2004 election. "We may have to wait and see how it develops," cautioned Bell, though he said the state Legislature appears to have cleared up critical questions about how to execute the amendments.
The Legislature tackled No. 7 by limiting who may request records under the amendment, which records they may request, and how the records may be used.
Under the bill, a patient who "has sought, is seeking, is undergoing or has undergone care or treatment" may ask for records on errors related to their diagnosis only. Hospitals must release final reports but don't have to turn over drafts or supporting documents protected by attorney-client privilege.
"If you're seeking care, you can get the information," said Rich Morrison, regional vice president of government relations for Florida Hospital in Orlando. "What that definition does is prevent fishing expeditions on the part of newspapers or plaintiff attorneys just trying to look for stuff."
Florida Hospital joined the state hospital association in two lawsuits filed shortly after the election to prevent implementation of both amendments until the Legislature provided clarification. If enacted, the Legislature's bill would make the lawsuits moot, Morrison said.
The 1,611-bed hospital is discussing how to collect and release information to patients who request medical error information under the law. "It's important that we put the information in context," Morrison said, for example by adjusting data for volume or other factors.
The bill also states that No. 7 does not wipe out existing laws that dictate the discoverability or admissibility in court of adverse event records or those laws that give legal immunity to hospital quality committees.
"We think they did a really good job balancing the right of the patients and protecting the peer-review process," Morrison said.
Officials with the Academy of Florida Trial Lawyers, a professional association representing the state's trial lawyers, disagree. "Implementing legislation is not designed to eviscerate or gut the intent of a constitutional initiative, which is what happened this year at the Legislature," said Alexander Clem, the academy's president.
The bill addressing No. 7 restricts access to records and prevents patients from making informed healthcare choices, he said. "Healthcare decisions are the most important decisions any of us make in our lives." The bill addressing No. 8 makes it more difficult for a malpractice incident to count as a so-called strike, he said.
The Legislature's bill gave the state's Board of Medicine leeway to determine malpractice in cases where a finding was based on less than "clear and convincing evidence." The bill also excludes settlements from counting as malpractice incidents.
Raising the standard for a so-called strike was necessary to prevent physicians from leaving Florida -- or avoiding it in the first place, said state healthcare officials. "It's a tremendous healthcare access issue," said Troy Tippett, a neurosurgeon and president-elect of the Florida Medical Association.
No. 8 discouraged physicians from relocating to Florida for fear that court judgments, which may be swayed by jury's emotions and are subject to a less stringent standard than "clear and convincing evidence," could end their career. "You'd lose your ability to practice medicine," Tippett said.
Bush's signature may not be the last word on the controversial amendments. Morrison said he'd like to see the Legislature address the three-strikes rule in future sessions by adding a time limit -- say three strikes in 10 years -- for revoking a license.
Jacqui Sisto, a state medical association spokeswoman, said individual patients or the amendents' supporters might challenge the bills in court.