Constitutional amendment proves no guarantee to opening up hospital records to patients

By Amber Statler-Matthews, BrowardBulldog.org

Harlan Ginsberg of Coral Springs was rushed to Margate’s Northwest Medical Center in 2006 after a kidney stone attack. During surgery to remove the stone, he says, a doctor mistakenly cut a tube that delivered urine to his bladder and removed a kidney that another doctor testified was healthy.

Relying on a voter-approved provision in Florida’s Constitution, Ginsberg’s medical malpractice attorney asked Northwest Medical to turn over its reports about other patients’ “adverse medical incidents” of the type Ginsberg claimed he suffered. The hospital initially refused. Later, it agreed to search its records – but only if Ginsberg coughed up $77,550 in advance.

Ginsberg refused to pay and didn’t get the records. In October, he lost his malpractice case in Broward Circuit Court against the 215-bed hospital and two of its doctors who treated him. Fort Lauderdale attorney Andrew Winston is considering whether to appeal.

“The hospital went to extraordinary lengths to prevent Mr. Ginsberg from obtaining the information he was entitled to under the Florida Constitution,” said Winston.

Seven years ago, Florida voters overwhelmingly approved a Constitutional amendment that gave patients who had been hospitalized the right to see reports dealing with botched medical procedures and poor care. While the amendment could be used to give patients vital information before a medical mistake is made, its practical and more much publicized purpose was to give aggrieved patients more power in court by opening up malpractice complaints and confidential internal reviews of doctors and hospitals.

The Patients’ Right to Know Act was hailed as a major victory for individuals seeking to know more about their hospitals and doctors. But it hasn’t always worked out that way.

Since the law’s inception, hospitals have thrown up roadblocks and legal challenges to block access to patient records. In response, patients across Florida are using the law to ask judges to pry open reports about medical errors.

‘UNDULY BURDENSOME’

In Ginsberg’s case, Northwest Medical’s attorneys produced to the court a 10-page affidavit from a hospital risk manager who called Ginsberg’s request “unduly burdensome.” A hospital lawyer said it would take the equivalent of at least 235 days just to research it. After months passed and the judge did not rule on the records request, Ginsberg’s lawyer withdrew it to expedite trial.

Northwest Medical is owned by the Hospital Corporation of America.

The Florida First Amendment Foundation is a private, non-partisan and non-profit organization that promotes the public’s constitutional right to oversee government through the state’s open government laws. Foundation President Barbara Petersen said the hospital’s hefty fee is “ridiculous – regardless of the affidavit – and amounts to an effective denial of access.”

“It is troubling that the hospitals would systematically deny records as required,” said state Rep. George Moraitis Jr., R-Fort Lauderdale.

While some hospitals comply with the law, others don’t, saying they have exclusive rights to the records or that their method of record-keeping does not fit their definition of documents required for release by the amendment. Broward Health, the county’s largest healthcare provider which operates Broward General Medical Center and other facilities, says it considers disclosure on a case by case basis.

Sean Domnick, a Palm Beach Gardens attorney, said some hospitals release a limited amount of information. But he said most avoid complying with the law.

“What we are finding now is hospitals aren’t investigating and reporting incidents like they’re supposed to. So there is no documentation,” said Domnick, who won a 2008 state Supreme Court ruling to obtain medical records on behalf of a patient.

PATIENT RIGHTS IN FLORIDA

The amendment, heavily backed by trial lawyers who anticipated an increase in medical malpractice lawsuits, was overwhelmingly approved by 81 percent of voters at a time when doctors and lawyers were in a pitched battle over malpractice lawsuits and patient rights.

Hospitals are legally required to investigate and keep records of adverse incidents, including patient complaints, as spelled out in the state’s General Records Schedule for Hospitals. Patients are supposed to be able to get access to those reports, but seven years later that’s not always the case.

Soon after the amendment was approved, hospitals began lining up to challenge the scope and wording of the patient records law.  Five months after the election, at the urging of hospitals, Florida legislators voted to limit the scope of the amendment. At the time the move was praised by Dr. Dennis Agliano, a Tampa surgeon who was president of the Florida Medical Association.

Today, the battleground is the courts.

“When presented with these cases, the courts are almost unanimously siding with the patient,” said Domnick.

Nova Southeastern University Law Professor Mike Flynn, who teaches classes on medical malpractice, said resistance by hospitals makes it seem as if they have something to hide.

“The amendment was designed to open up the records kept by the hospitals,’’ he said. “The idea is to permit patients access to the unsanitized version of what may have gone wrong in the treatment of a patient. The process requires relentless pursuit of the information.”

LEGAL CHALLENGE

In August, the Third District Court of Appeal in Miami sided with Dania and Ricardo Acevedo of Pembroke Pines, who alleged that a surgeon at Doctor’s Hospital in Miami negligently performed unnecessary surgery. The court ordered the hospital to hand over patient records to the Acevedos who continue to press their malpractice case against the hospital and others in court.

Hospitals cite a variety of reasons for not complying with the Constitutional amendment.

A routine argument is that Amendment 7 is too vague about which documentation must be turned over to patients. Hospitals also claim the records are exempt from disclosure because they are legally privileged.

The South Broward Hospital District, which operates the Memorial Healthcare System, usually rejects requests for adverse patient records because its records are not organized and maintained in a way that fits the definition of documents that must be released, according to Kerting Baldwin, director of media relations for the Memorial Healthcare System.

“Rather, most hospitals, including Memorial hospitals, maintain incident reports which are not producible as such under Amendment 7,’’ Baldwin said in a written statement.

Cleveland Clinic Weston is among hospitals that claim they have exclusive rights to adverse medical incident reports, and therefore they cannot be given to patients, according to an E-mailed statement from Arlene Allen-Mitchell, communications manager for the hospital.

Hospitals take such positions with near impunity. Florida’s Agency for Health Care Administration “does not have the ability to regulate or make a facility follow Florida’s Constitution,” said AHCA spokeswoman Shelisha Coleman. “That is up to the judicial system and is something that should be addressed in the courts.”

SOME HOSPITALS COMPLY WITH THE LAW

On the other hand, Tenet Healthcare Corp. — which operates the North Shore Medical Center/FMC Campus in Lauderdale Lakes — is among the minority of hospital organizations that said they comply with Amendment 7.

“Tenet Hospitals have and are prepared to make adverse medical incident records available for inspection and copying upon written request by patients and/or patient representatives in accordance with Florida law,‘’ said Shelly Weiss Friedberg, director of public relations for Tenet‘s Florida region, in a prepared statement.

State Sen. Ellyn Bogdanoff, R-Fort Lauderdale, said legal jousting by many hospitals has interfered with the implementation of a law that is “clearly what the public wanted.”

“Obviously (what the hospitals do) is creative from a legal standpoint, but it’s deceptive from a constitutional standpoint,” she said. “Amendments must be written very specifically. Otherwise they are useless.”