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Justices delve into medical records dispute


THE CAPITAL, TALLAHASSEE, October 5, 2016.......... Though the parties reached an eleventh-hour settlement, the Florida Supreme Court on Wednesday plunged into a dispute that could have implications for medical-malpractice cases across the state.

Justices heard more than 45 minutes of arguments about an issue rooted in a 2004 constitutional amendment that was aimed at expanding access to records in malpractice cases. Plaintiffs' attorneys heavily backed the voter-approved amendment, as records held by hospitals and other medical providers can play a key role in pursuing malpractice claims.

The Supreme Court arguments focused, at least in part, on whether a federal patient-safety law shielded a Jacksonville hospital system from having to disclose some documents in a malpractice lawsuit. The family of Marie Charles filed the lawsuit alleging she suffered debilitating injuries because of negligent care while she was a patient of the Baptist Health system.

Bryan Gowdy, an attorney for the family, said at the outset of Wednesday's Supreme Court hearing that the parties had settled the lawsuit at 5 p.m. Tuesday. But with the records issue potentially affecting numerous other cases across the state, justices went ahead with the hearing and peppered attorneys on both sides with questions.

Justice Barbara Pariente repeatedly questioned how the federal law could shield hospitals from having to turn over records that otherwise would be subject to the requirements of the 2004 constitutional amendment --- a legal concept known as federal "preemption."

"Is it clear in the (federal) statute that Congress intended to preempt the state constitutional amendment … and every statute that exists in this state that requires not just the reporting but the keeping of certain documents regarding medical care in their hospitals?" Pariente asked George Meros, an attorney representing Southern Baptist Hospital of Florida, Inc., which does business as the Baptist system hospitals.

Meros said the 2005 federal law preempts the state requirements. The law allows hospitals to voluntarily submit information about medical errors to what are known as "patient safety organizations" --- and also offers certain confidentiality protections. Meros said the idea behind the law was to improve care and patient safety.

"The very reason why Congress passed this, and it's explicit, there's no question about it, is to create incentives for providers to report and to have analyzed misses, near-misses, mistakes, critical self-analysis," Meros said.

But Justice Peggy Quince questioned whether the law could prevent people from getting information that might help them pursue legitimate malpractice cases.

"It seems to me on the flipside of this is that your interpretation by putting everything into one of these patient safety whatever-you-call-them that you're now depriving people who have suffered adverse incidents because of negligence of doctors or hospitals or nurses or whatever the health-care provider might be, that they're now put in a position where they cannot discover information that would help them develop their claims," Quince said to Meros.

The 1st District Court of Appeal last year ruled in favor of the hospital system in the records dispute, prompting the Charles family to take the issue to the Supreme Court.

Gowdy did not detail the terms of the settlement reached late Tuesday. At one point, Justice Charles Canady appeared to question whether the Supreme Court should take up the records issue after the settlement had been reached.

"Essentially what you're arguing for here is for the court to issue an advisory opinion," Canady said. "I understand this is a live issue in other cases, but in this case the issue is over."

"I guess that's one way of framing it," Gowdy replied. "But I can represent to the court that I think I maybe have had one other case in my career where I've gotten so many contacts from lawyers around the state dealing with this."