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Ed Normand
Ed Normand
Attorney • (866) 735-1102 Ext 336

Medical Malpractice Patients' Right To Know

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In a decision just released earlier today the Florida Supreme Court ruled on the scope of the 2004 Florida Constitutional Amendment 7, entitled the “Patients Right to Know” Act. In a ruling that is welcome to consumers and patients who are concerned about the safety of their families when choosing a hospital, our State Supreme Court held in rulings on cases called Florida Hospital Waterman, Inc. v. Buster, and Notami Hospital of Fla., Inc. v. Bowen, (FLA. March 6, 2008) that Amendment 7 is both self-executing and is retroactively applicable even to medical incident records that were made before the Amendment was passed.

The Supreme Court held that Amendment 7 is self-executing (meaning that it did not need later legislation to validate or implement it) and retroactive so that it applied to records and documents made before the amendment was passed. The Court also ruled that much of Florida Statute §381.028, (a legislative act passed in 2005 that watered down the Amendment) was unconstitutional. Most important it ruled that the statutes prohibition of retroactive application of the Amendment was unconstitutional. The Florida Supreme Court stated that Amendment 7 “Provides a ‘sufficient rule’ by which patients can gain access to records of a health care provider’s adverse medical incidents.”

The ruling by the Court on Amendment 7 is so very important because it provides access to past histories of adverse medical incidents. Now a hospital must reveal its records about past acts of malpractice and crimes that have been performed at the hospital. In the past this was secret information that could not even be produced in a court of law with a court order. Now patients and consumers can ask and get records about bad things that have happened at the hospital before regarding their intended procedures or physicians. So many times physicians have been allowed to continue to practice at a hospital despite repeated incidents of negligence that were documented by the hospital but kept secret from the patient. The hospitals would allow the physician to continue to practice because he brought in lots of patients and revenue to the hospital. Further, since the physician was not a hospital employee the hospital was usually never liable in court for the conduct of the physician. Now that practice will end. Call it the Sunshine in Malpractice Law. Call it whatever you want, I predict it will save lives and prevent injury because it will allow consumers to know who the bad apples are in the hospital and who to avoid. It will pressure hospitals to get rid of the bad doctors even if it costs them patients and revenue.

The full text of this important medical malpractice decision can be found on the web at this link.