June 07 2007 - Florida medical errors may become public

An issue of fear and loathing to the health care industry, the prospect of opening secret incident reports, is scheduled to come before the Florida Supreme Court this morning.

Hospitals warn that the decision could squelch the willingness of doctors and nurses to report errors if the court orders opening of any files related to an "adverse medical incident" as decreed by the Patients' Right to Know, a voter initiative that passed overwhelmingly in November 2004. They also warn that it will be expensive.

"Depending on what the court says, it could cost scads of money," said Arthur England Jr., one of two attorneys who will argue the hospitals' case.

Two attorneys will argue for broad interpretation of the voter initiative, often called Amendment 7. They represent patients who have sued hospitals in Lake City and Tavares for medical malpractice.

Patients won lower-court rulings in the two cases that have been consolidated for today's arguments, Florida Hospital Waterman v. Buster and Notami Hospital of Florida v. Bowen.

Lower courts decided that the Legislature violated the constitution by passing "implementing" legislation in 2005 that narrowed the scope of the amendment. Lawmakers ruled out the use of certain disciplinary records in lawsuits and closed records that existed before passage of the amendment.

Christopher Carlyle, one of the attorneys who will appear before the court today, said it's "critically important" to see that the intent of the voters is carried out.

As burning as the issue is to hospitals, doctors and trial attorneys, its resolution carries importance outside the health care industry, said Michael Allen, Stetson University professor of constitutional law.

If the Legislature can get away with undercutting a citizens' initiative, he said, then the voters' power is diminished.

"It's that issue, dressed up in lots of trappings, that's really at the heart of this," Allen said.
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