News & Updates


Supreme Court Upholds Patient’s Right to Know

By: Travis Miller

In November 2004, Florida voters approved a series of constitutional amendments relating to medical care and medical malpractice. These amendments arose from a duel between the medical profession and trial lawyers, in which the medical profession sought to limit lawyers’ contingency fees and the trial bar promoted amendments such as requiring greater access to records. One such amendment– known as Amendment 7 at the time, was entitled, “Patient’s right to know about adverse medical incidents.” The amendment declared 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. Florida voters overwhelmingly adopted the amendment, with 81% in favor. 

The Florida Legislature in 2005 passed Chapter Law 2005-265 interpreting key provisions of the amendment. The law, codified at Section 381.028, Florida Statutes, arguably limited the scope of the amendment by defining types of records that are not within the scope of the amendment and specifying that the amendment applies only to records created after its adoption.

As expected, the amendment and statute triggered disputes among doctors or healthcare facilities and patients. In particular, healthcare facilities objected to patients’ requests for records when those records were protected by statutory privileges that pre-dated the amendment. These disputes resulted in slightly differing interpretations among Florida’s appellate courts, ultimately prompting the Florida Supreme Court to review how the amendment has been applied and whether the implementing statute is constitutional.

The Florida Supreme Court first determined that the constitutional amendment is “self-executing.” This means that although the legislature could pass laws interpreting the amendment, those laws were not necessary– the amendment provides enough guidance on its face as to how it should be applied. The Supreme Court found that the language of the amendment made clear that it was intended to apply immediately following its adoption, without action of the legislature.

The next critical question then was whether the amendment granted access only to records pertaining to adverse incidents after its adoption, or whether the amendment suddenly granted access to existing records that previously would have been confidential. Although the Court was divided on this issue, the majority ruled that the amendment applies to all records of adverse incidents, even when those records pre-dated the amendment. A strong dissenting opinion reasoned that records created with an expectation of confidentiality should not become subject to disclosure after-the-fact. The majority, however, believed that the plain language of the amendment demands its result.

Finally, the Supreme Court considered whether Section 381.028 conflicts with the amendment and therefore must be stricken. The Court acknowledged that the legislature may interpret constitutional provisions, but those interpretations cannot conflict with constitutional rights. The Court found several instances in which the statute contradicted the amendment. It determined that these provisions are severable from the statute as a whole, and it therefore allowed the statute to stand while striking only the offending provisions. Statutory provisions found to violate the constitution are:

  • The statute specifies that only final records are discoverable, whereas the constitution subjects “any records” of adverse incidents to discovery.
  • The statute limits access only to those records relating to the same or a substantially similar condition as the requesting party, while the amendment does not contain such a limitation.
  • The statute limits production of records to those generated after November 2, 2004, but as noted above the Supreme Court found that the amendment applies to pre-existing records.
  • The statute preserves prior statutory privileges. However, the Supreme Court determined that the application of the amendment is not limited in this manner.
  • Under the statute, a person could request records only as to a facility or provider of which he or she is a patient. The constitutional amendment does not contain this limitation.

The statute preserves existing laws pertaining to admissibility of records into evidence, but the Supreme Court again found that the restriction is not justified under the amendment.

Please contact Travis Miller with any questions about this recent Supreme Court decision.