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Is the 'Patients' Right to Know' constitutional?
Florida legislation making medical records public
Dubbed the "Patients' Right to Know Amendment," Florida's Amendment 7 has hospital watchdogs and consumer rights groups up in arms about what is constitutional and what should be revealed about hospitals' peer review records. Hospital associations hold the confidentiality of those records as sacrosanct while consumer rights activists ask, "what are they trying to hide?" While passed by Florida voters in 2004, the law is mired in the courts, and opinions on both sides are still teeming. Could your state be next?
Amendment 7 gives patients "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." And recently the Florida Supreme Court upheld the amendment, adding that it applied retroactively to any medical record created before the passage of the amendment.
The Florida Hospital Association is the lead plaintiff in a statewide lawsuit in federal court alleging that the amendment runs counter to federal statutes. Bill Bell, general counsel at the FHA, says Florida has a unique process for putting amendments on the ballot and questions not only the way the bill was sold to voters but its very constitutionality.
In Florida, Bell says, a voter initiative petition process holds that if you can get enough signatures on a given issue, that issue can be put on the ballot. According to Bell, the driving force behind the petition was the Florida Academy of Trial Lawyers.
Bell contends that the "way the bill was titled and the way it was sold to voters" was that any potential patient could see hospital incident records to help them select doctors and hospitals for their future care. "In other words," he says, "it's worded with the correct buzz words, focus grouped, and surveyed in order to grab the voters' attention, who are going to have about 10 seconds to decide on an issue that Florida and other states have spent 30 years debating and researching and litigating."
But, he says, since the passage of the bill, all information requests have come from medical malpractice attorneys representing patients in existing cases "to assist them in their lawsuit." Hospitals in Florida, he says, have always been committed to improving care and safety, and Florida was one of the first states to require a risk management program.
Bell says the crux of the case the association, the Florida Medical Association, and other groups have lodged is "that by opening up those discussions or those records that are created, people become a little more cautious in what they write down and that's not helpful. Really the amendment has become a fishing expedition for trial lawyers."
Bell contends that the law runs counter to several federal ones, in particular the Health Insurance Portability and Accountability Act and the Health Care Quality Improvement Act, among others, as well as the constitutional right to due process "if nothing else, for the retroactive issue. And there are federal rights for contracting, and certainly hospitals and their medical staffs entered into agreements that we think are under federal protection."
Beyond that, Bell cites the administrative burden of collecting all the fragmented records and redacting any information that the hospital otherwise cannot legally disseminate, although he says the courts now will allow hospitals to pass that cost to the requester.
As to the administrative burden, Bill Newton, executive director of the Florida Consumer Action Network, laughs, saying "Really? I could create some computer program for them."
Newton disputes Bell's assertion that the confidentially of the peer review process that elicits frank and open disclosure will be threatened by the amendment, saying "they're [hospitals and doctors] afraid of what might happen, and they think people might misunderstand. I think that's clear. But if you look at other examples in the marketplace, we can see that other types of businesses have been able to do this and use the information in a positive way and if we're lucky, it'll get some bad apples out of the community.
"If there was a good process set up with peer reviews now where it would be public, that would be great. But there isn't. It's done behind closed doors." And he points to sites such as angieslist.com that already are posting people's experience at hospitals and with doctors. So wouldn't hospitals want to direct that conversation if it's going to happen in this Internet-savvy environment anyway? he asks. He adds that the concept of doctors judging other doctors in regard to adverse event disclosures is only a "perceived bias. Getting real information out there. What could be wrong with that?"
But, Bell says, the FHA supports transparency and patient care. The association is supporting a bill for patient safety organizations to review information in a confidential way. It's the environment the amendment will create that he disputes. "Almost every state in the United States and in addition federal acts and even the most recent one with the patient safety organization have in mind the improving of patient care," he says, "and all of them recognize the concept that if you want people to have self-critical analysis, you have to an environment conducive to self-analysis." An environment, he says, that holds confidentiality as sacred.