The Florida Supreme Court has refused to rubber-stamp an initiative to protect hospitals from medical malpractice claims. In a ruling issued on October 24, 2017, the State’s highest court told Bartow Regional Medical Center to turn over so-called “adverse medical incident reports” to a plaintiff who claims she received negligent care at the hospital, WLRN reports. In so doing, the Court’s four-Justice majority reaffirmed Amendment 7, a Florida Constitutional Amendment passed in 2004 that dramatically expanded access to medical records in malpractice cases.
Hospital Must Hand Over Adverse Medical Incident Reports
Writing for the Court in a 32-page opinion, Justice R. Fred Lewis noted that the medical records in question hadn’t actually been prepared by Bartow Regional Medical Center. The hospital’s attorneys had contracted with a third-party company to perform occasional peer-review reports when a doctor’s actions came into question.
Amber Edwards wanted to see those reports. Edwards had been admitted to Bartow Regional in 2011, court records state, suffering from abdominal pain. She was diagnosed with gallstones and surgery was ordered. But during the procedure, Edwards says her bile duct was accidentally severed. Her surgeon, Dr. Larry D. Thomas, failed to notice, and Edwards was discharged, but continued to suffer intense pain for the next few days. When she returned to the hospital, the error was discovered. Edwards was transferred to Tampa General Hospital for an emergency operation.
What Is Third-Party Doctor Review?
Some years ago, the hospital’s defense lawyers contacted a third-party company, M.D. Review. Run by physicians, M.D. Review provides external peer-review for hospitals and other medical facilities across the country. When a hospital wants an outside-eye to look over the actions of a physician, they call M.D. Review.
And Bartow Regional had called M.D. Review, but not necessarily to evaluate the case of Amber Edwards. For Bartow, M.D. Review was a precautionary measure, a third-party who could provide expert write-ups on the standard of care when a lawsuit seemed imminent. Edwards asked to review the reports for herself.
As expected, the hospital said she couldn’t have them, despite the explicit provision in Florida’s Amendment 7, that “patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” In court filings, Bartow Regional’s attorneys argued that neither Florida nor federal law obligate them to report the reviews conducted by M.D. Review and, on that basis alone, the records shouldn’t be discoverable in State court.
FL Constitution Grants “Absolute Right” To Adverse Event Records
But as the Florida Supreme Court eventually reasoned, “any” seems to mean “any.” Florida’s Constitution isn’t just saying that plaintiffs in malpractice cases have a right to access their own medical records. It’s saying something much bigger than that; patients have a right to access any adverse medical incident reports possessed by the defendant facility.
More to the point, Amendment 7, which passed by an overwhelming 81% margin, actually did away with some previous Florida regulations, including a law that made medical records prepared by peer-review panels exempt from civil court proceedings. Thus, in passing Amendment 7, Florida’s voters gave patients the absolute right to any and all adverse medical incident reports, whether or not those reports have anything to do with their medical malpractice claim. That’s pretty radical if you think about it, and it’s not surprising that few states have followed Florida’s lead.
Does Pennsylvania Protect Peer-Review Medical Records?
Here in Pennsylvania, hospitals are protected by the Peer Review Protection Act, a law passed more than 40 years ago. While its power is waning, the Act grants medical providers a degree of legal immunity when they reach out to a peer-review panel after something goes wrong. In many cases, the results of peer review in Pennsylvania can’t be entered as evidence in a medical malpractice case.
But plaintiffs’ attorneys in Philadelphia have successfully fought for exceptions to this general rule. In one case, a State court allowed into evidence a series of medical reports created by a group that credentials physicians. Another case saw an exception made for records that, while produced through peer-review, had then been submitted to the US Attorney’s Office. Peer-review programs spearheaded by the Pennsylvania Department of Health or Centers for Medicare and Medicaid Services are handled similarly.