House works on med mal amendment implementation

House works on med mal amendment implementation

first_img House works on med mal amendment implementation Gary Blankenship Senior Editor“It’s like there is a food fight in Florida between the doctors and lawyers and we’re the custodians in the cafeteria cleaning up.”That’s how Rep. Jack Seiler, D-Pompano Beach, summed up disagreements over bills in the House Judiciary Committee to implement constitutional amendments 7 and 8 approved by voters last November.On one side are doctors and hospitals and the other the Academy of Florida Trial Lawyers and Floridians for Patient Protection, a group created by the academy to support the amendments.The committee, after two meetings debating the issues, approved implementing bills on March 16, although some members warned that provisions in both bills may violate the amendments they supposedly implement. Similar bills were pending in the Senate Health Care Committee as this Bar News went to press.Amendment 8 provided that any doctor who has been found to have committed three instances of medical malpractice will have his or her license removed. The implementing legislation provides that only incidents occurring after the passage of the amendment will count, that there must be three incidents within a 10-year period, and only judgments of $50,000 or more will be counted.The bill also ordered the Board of Medicine to set up a panel to review any court verdicts to see if they meet the clear and convincing standard necessary to remove a license, rather than just the preponderance of the evidence standard needed to win the case.Amendment 7 gives patients and potential patients the right to get adverse incident, peer review, and otherwise confidential records. The committee’s bill would allow doctors and hospitals to impose reasonable charges for providing that information and editing out other patients’ names and identifying information. It also would restrict patients to information about conditions that are the same or “substantially similar” to theirs. In addition, none of the information garnered under the amendment can be used in a court case, including to impeach a witness, or to compel testimony.The bill also specifies that released records must be edited to comply with federal common, statutory, and case law to protect patient privacy. Withdrawn from consideration was an amendment that would require citizens receiving records “involving” any other patient information to keep those records confidential.The Academy of Florida Trial Lawyers had argued that no implementing legislation was necessary, but committee Chair Rep. David Simmons, R-Altamonte Springs, who acted as sponsor for the two proposed committee bills, disagreed. He noted that a Sixth Circuit court has already ruled that Amendment 7 has unresolved issues and requires implementing legislation.“I believe this as well as amendment number 8 cry out for the legislature to explain the ambiguities that are inherent in the amendments,” he said.Rep. Jeff Kottkamp, R-Cape Coral, proposed an amendment that would allow the medical records released under the Amendment 7 implementing bill to be used for impeachment in a case, but withdrew it after Simmons objected. Simmons argued that attorneys could “find a way to get it in. Everything is impeachment to them.”Kottkamp, though, objected to the amendment which limited access to adverse incident reports to cases identical or substantially similar to a patient’s. While he said that was a good policy, he argued the amendment approved by voters made no such limitation.“I have a very serious concern that our efforts are going to be all for nothing,” Kottkamp said. “We are limiting the constitution with a statute and I’m not really convinced that is permissible.”Kottkamp, Seiler, Rep. Joe Pickens, R-Palatka, and Rep. Kevin Ambler, R-Tampa, also questioned where the 10-year time period set for three malpractice judgments the Amendment 8 enacting bill would pass constitutional muster, noting the amendment itself set no time limit. The original bill had set five years, but the committee amended it to 10.Kottkamp said he personally would prefer a time limit, but “putting in a five- or 10-year limit is completely contrary to our constitution, whether we like it or not.”Seiler, who participated in drafting many of the amendments for both bills, said he was upset that no one caught the apparent major flaw in Amendment 8 on standards of evidence. He noted while the standard in civil cases is the greater weight or preponderance of the evidence, federal court rulings have said a license cannot be removed unless there is clear and convincing evidence. He noted the issue was not raised when the Florida Supreme Court reviewed the initiative for appropriateness before the election.“I think we have created a tremendous problem and we are going to see this issue again,” Seiler warned.Several representatives were also critical of doctors and lawyers for failing to work out their differences and taking them to voters last November in dueling constitutional amendments. Besides Amendments 7 and 8, which were supported by the Academy of Florida Trial Lawyers, the Florida Medical Association successfully pushed for Amendment 3, which limited lawyers’ contingency fees in medical malpractice cases. They also said the three amendments show what happens when the citizen initiative process is misused.“I think at some point in time, the committee needs to look at repealing [amendments] 3, 7, and 8, which are all bad public policy for the state of Florida,” Seiler said. “We’re affecting health care, we’re affecting consumer rights, and it wasn’t the right thing to do.”Pickens and Kottkamp agreed, with the latter saying, “I think that should be our long term goal to repeal all three of these, otherwise we’re going to be in a world of hurt and not have anyone to treat us in the hospitals.”Representatives were also critical of doctors and lawyers for not trying to find more common ground without resorting to constitutional amendments.“We’ve got to find a solution instead of getting in this bloody water shark fight every year,” said Rep. Dennis Baxley, R-Ocala.Kottkamp, without naming it, placed blame on the FMA which turned down offers from the academy to drop efforts to place Amendment 3 on the ballot if the trial lawyers dropped their efforts for Amendments 7 and 8.“I think it should be said today that at least one of the interest groups in this food fight tried to avoid it and I hope both sides have learned a lesson,” he said. “Insisting on driving the car over the cliff serves no one.” House works on med mal amendment implementation April 1, 2005 Senior Editor Regular Newslast_img

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