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Don't Limit Patients' Access To Medical Records

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The Tampa Tribune

Published: October 23, 2008

Four years ago - to the dismay of doctors and hospitals - 82 percent of Floridians voting in the general election approved a state constitutional amendment granting them access to information about medical mistakes by health care facilities and providers.

Through Amendment 7, voters, would-be patients all, demanded the right to check out the track records of hospitals and physicians who had been unwilling to make that information public.

Since then, the state Agency for Health Care Administration has published reports in the aggregate, but specifics are sorely lacking, and health care organizations have done everything they can to stymie the will of the people.

The Florida Supreme Court is currently considering whether a citizen's right to learn about a health care facility's past mistakes is limited to hospital and physician reports or whether the amendment is broad enough to include the adverse incident reports of nursing homes and nurses. Lower courts have split on the issue.

Although there is nothing in the amendment language that specifies it was to include nursing homes, certainly most people would consider a nursing home a health care facility.

After all, most nursing home residents don't live there because they want to. They are there because they can't take care of themselves. Moreover, nursing homes are referred to as health care facilities in numerous statutes, and nurses there provide professional health care.

Meanwhile, in federal court in the Northern District of Florida, the amendment has been challenged by hospital organizations as a violation of the federal Constitution.

The truth is that health care organizations don't want to release adverse incident reports because a poor track record would be bad for business. If patients have the ability to see how many mistakes are made at a given hospital, they just might decide to go somewhere else.

On the other hand, if a hospital has a good record, it should attract patients. But hospitals would prefer patients to make their choice without the information.

Before Amendment 7, health care facilities did not report medical incidents. And since its passage, they have tried to limit its reach. There have been moves to eliminate the required reporting of some kinds of mistakes.

As early as the implementation legislation, lawmakers tried to restrict the release of incident reports to the specific procedure planned for a patient. For example, if a patient awaiting hip surgery also wanted to learn about infection rates, release of infection information would have been denied. Fortunately, the state Supreme Court rejected that language.

Now the court is considering the case of a woman who, against doctor's orders, was given solid food and supposedly choked on cole slaw. Her estate is appealing a lower court ruling that the "patient's right to know" amendment applies to neither nurses nor nursing homes.

The ruling was a too-narrow reading of the statute.

When the justices heard the case last month, they worried about the definition of health care facility and whether including nursing homes could open the door to fishing expeditions in walk-in clinics, physician's offices and other settings. Several justices, however, also allowed that most people would likely consider a nursing home a health care facility.

The court has said the words used in constitutional provisions should be given reasonable meanings in a framework of contemporary societal concerns. Under that standard, patients should have the right to know about adverse incidents in nursing homes.

The reach of Amendment 7 should not depend on where a patient received professional medical care - in a hospital or nursing home.

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