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Florida Hospital Watersman, Inc. v. Teresa M. Butler

SC06-688 | SC06-912

>> GOOD MORNING, GOOD
MORNING, GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
>> GOOD MORNING, AND WELCOME
TO THE ORAL ARGUMENT
CALENDAR FOR THURSDAY JUNE
7th, 2007.
FIRST CASE ON THE CALENDAR
THIS MORNING IS WATERMAN v.
BUTLER.
READY TO PROCEED?
>> MAY IT PLEASE THE COURT.
MY NAME IS ARTHUR ENGLAND IS
WITH ME TODAY IS MASON
GROWER ON THE BRIEF FOR
FLORIDA HOSPITAL.
ALSO, WITH US ARE STEVE
WISOTSKY AND STEVE,
REPRESENTING NOTAMI
HOSPITAL.
THESE CASES HAVE BEEN
CONSULTEDDIDATED FOR
ARGUMENT.
YOUR HONOR, WE HAVE RESERVED
FOUR MINUTES FOR REBUTTAL
AND IN ORDER TO ADDRESS
SENSIBLY THE THREE CERTIFIED
QUESTIONS IN THE FLORIDA
HOSPITAL CASE, WE HAVE
DIVIDED THE ARGUMENT AND WE
ARE GOING TO TAKE THEM IN
REVERSE ORDER.
I AM GOING TO FIRST ADDRESS
THE ISSUE OF RETROACTIVITY
AND THEN I'LL LAUNCH INTO
THE SELF-EXECUTING NATURE
AND APPLICATION OF THE
STATUTE THAT WAS PASSED BY
THE LEGISLATURE.
MR. WISOUGHTSKY WILL PICK UP
THE BALL THERE AND GO
THROUGH THAT AND FOLLOW THAT
WITH THE LITIGATION
DISCOVERY ISSUES THAT ARE
RAISED BY THE FIRST
CERTIFIED QUESTION IN MY
CASE.
>> IF YOU ARE GOING TO DEAL
WITH THE ISSUE OF
RETROACTIVITY, WOULD YOU
RESPOND TO A CONCERN THAT I
HAVE THAT IF WE HOLD THAT IT
IS NOT RETROACTIVE THAT
REALLY WE ARE TALKING ABOUT
AN EXTENSIVE DELAY IN THE
EFFECT IN THE PASSAGE OF
THIS AMENDMENT.
THAT IS, THAT IF WE WERE
TALKING ABOUT, WELL,
STARTING THE DAY AFTER IT
WAS APPROVED AND THEN
SOMEBODY GOES IN FOR MEDICAL
TREATMENT AND CREATES
RECORDS AND THEN EVENTUALLY
YOU WILL GET TO THE POINT
WHERE THERE MAY OR MAY NOT
BE ACCESS TO THOSE RECORDS.
BUT IT WOULD APPEAR THAT
THERE WOULD BE AN EXFENSIVE
DELAY REALLY.
WHEREAS, IF WE HOLD OR IF,
IF, IF IT, WE CONCLUDE IT IS
RETROACTIVE, THEN CITIZENS,
PATIENTS, AND AGREED OR
INJURED PARTIES WOULD HAVE
IMMEDIATE ACCESS.
SO HELP, HELP ME WITH THAT,
THAT CONTRAST.
>> YOUR HONOR, CANDIDLY, I
CAN'T HELP YOU WITH IT.
THERE IS GOING TO BE A DELAY
BECAUSE THIS CONSTITUTIONAL
AMENDMENT WAS WRITTEN TO BE
PROSPECTIVE, TO GO INTO
EFFECT, AND ONLY ADDRESS
EVENTS OCCURRENCES, RECORDS
THAT SUCCEED.
LET ME TELL YOU WHY THAT HAS
TO BE THE LAW.
THAT IS THE TEST.
FOR DETERMINING THE
RETROACTIVE EFFECT OF A
CONSTITUTIONAL AMENDMENT OR
A STATUTE.
THE TEST THAT YOU HAVE SET
OUT OVER AND OVER AGAIN, THE
TEST THAT ON THE FIRST GO
AROUND YOU MUST DETERMINE IF
ON THE FACE OF THE AMENDMENT
ITSELF, IT PROVIDES A CLEAR
EVIDENCE OF AN INTENT TO
MAKE IT RETROACTIVE.
TWO EVENTS AND DOCUMENTS
BEFORE.
-- TO EVENTS AND DOCUMENTS
BEFORE.
LET ME TELL YOU HOW YOU
PHRASE THAT BECAUSE THIS IS
WHAT YOU HAVE TO ASK
YOURSELF IN THIS CASE WITH
REGARD TO THE CONSEQUENCES
YOU DISCUSS.
AS YOU POSE THE QUESTION,
CAN IT BE SAID, AND I QUOTE,
THAT THE VOTERS AFFIRMATIVELY
CONSIDER THE POTENTIAL
UNFAIRNESS OF RETROACTIVE
APPLICATION, AND DETERMINE
THAT IT WAS AN ACCEPTABLE
PRICE TO PAY FOR THE
COUNTERVEILING BENEFITS.
YOU HAVE TO ASK YOURSELF, DO
THE VOTERS HAVE ANY IDEA,
DID IT, WAS IT COMMUNICATED
TO THEM EXPRESSLY THAT THEY
WERE NOW OPENING UP RECORDS
WHICH HAD BEEN CREATED BY
PEOPLE IN THE QUALITY
ASSURANCE AND THE PEER
REVIEW PROCESS WHO RE-SURED
--
>> -- OF THE VOTER OR THE
PATIENT THAT SAYS, YOU KNOW,
I'M LOOKING AT THIS
AMENDMENT, AND UP TO THIS
POINT, APARENTSLY I HAVE
BEEN DEPRIVED OF ACCESS TO
THESE RECORDS, AND I DON'T
THINK THAT'S RIGHT.
I THINK I SHOULD HAVE
RECORDS.
OF THIS NATURE AND SO I AM
GOING TO VOTE FOR THIS SO
THAT I WILL GET ACCESS TO
THESE RECORDS.
AND THESE RECORDS, MEANING
THE RECORDS THAT BEFORE THEY
VOTED FOR THAT, THAT THEY
DID NOT HAVE ACCESS TO.
>> YOUR HONOR, YOU CAN'T PUT
YOURSELF IN THE MIND OF THE
VOTERS.
YOU'RE OBLIGED BY THE LAW OF
THIS STATE TO DETERMINE
WHETHER THE AMENDMENT ON ITS
FACE PROVIDED CLEAR EVIDENCE
TO THE VOTERS THAT THEY WERE
UNDOING --
>> OF COURSE, THE IRONIC
PART --
>> -- OF THE PEER REVIEW
PROCESS.
>> THE IRONIC PART OF WHAT
YOU ARE SAYING IS THAT THE
VOTERS DIDN'T SEE THE
AMENDMENT.
MAY SAW THE SUMMARY.
>> AND THERE IS NOTHING IN
THE AMENDMENT THAT --
SUMMARY THAT SUGGESTS THAT
EITHER.
>> BUT WHAT ABOUT --
>> IN FACT, THE ONLY WAY,
THE ONLY WAY THE OTHER SIDE
AARGUES, THE PROPONENT
ARGUES THAT YOU COULD FIND
AN INTENT IF YOU FIND THE
WORD ANY, WHICH IS IN THE
TEXT AMENDMENT, MODIFYING
THE ADJECTIVE, MODIFYING THE
RECORDS, ANY RECORDS MUST
MEAN BEFORE BUT OF COURSE
THAT ISN'T THE CASE BECAUSE
IN THE MEMORIAL HOSPITAL
CASE, YOU SAID THE MODIFIER
EXISTING TO EXISTING LEASES
AND FUTURE LEASES EXISTING
DID NOT COMMUNICATE A CLEAR
EVIDENCE OF RETROACTIVE
INTENT.
SO, THE VOTEVERS THE SUM
RAEMPT YOU'LL FIND NOTHING
IN THERE THAT EXPRESSES A
CLEAR INTENTION THAT --
VOTERS HAVE THE SUMMARY.
YOU'LL FIND NOTHING IN THERE
THAT EXPRESS AS CLEAR
INTENTION THAT HAD BEEN
UNDER LEGISLATIVE MANDATE
AND THIS COURT'S CONSTANT
REAFFIRMANCE OF THAT THAT
THE PROCESS OF PEER REVIEW,
CREDENTIALING, RISK
MANAGEMENT WAS A
CONFIDENTIAL ONE WHICH WOULD
NEVER BE BRIEFED.
>> AND SO THE EFFECT OF YOUR
REQUIREMENT, IT MAY BE THE
REAL EFFECT THAT IN 2005, A
PATIENT IS GOING TO GO SEE A
NEW DOCTOR, AND THIS PATIENT
BELIEVES, WELL, UNDER THIS
AMENDMENT, I CAN NOW SEE
WHAT THIS DOCTOR WAS LIKE.
I WANT TO SEE ALL HIS
RECORDS, SEE IF HE'S EVER
BEEN DISCIPLINED AND I
REQUEST ALL THESE RECORDS
AND THIS DOCTOR HAD BEEN
DISCIPLINED SEVERAL TIMES IN
198Y.
HIS PRIVILEGED REVOKED, THEN
REINSTATED.
WENT THROUGH ALL THIS MEZIN
THE HOSPITAL, BUT THE --
MESS IN THE HOSPITAL BUT THE
PATIENT CANNOT KNOW ANY OF
THAT IN 2005.
>> AND YES, YOUR HONOR, AND
THAT SOUND HARSH BUT THE
REASON IS BECAUSE THAT'S THE
WAY, THE WAY THE BALLOT
SUMMARY IN THE AMENDMENTS
WERE WRITTEN.
>> WELL, -- CAN WE GO BACK,
CAN WE ACTUALLY GO TO, I
KNOW, WE'LL GO TO THE BALLOT
SUMMARY.
BUT THIS IS THE PROBLEM I
HAVE, AND I AGREE WITH YOU,
THERE'S GOT TO BE A CLEAR
INTENT.
>> OKAY.
>> THAT SOMETHING
RETROACTIVELY APPLIED, BUT
YOU SEE, WHAT WE HAVE HERE
IS A SITUATION, DON'T WE,
WHERE THE RIGHT TO GET THOSE
RECORDS, OBVIOUSLY DOESN'T
START UNTIL THE EFFECTIVE
DATE OF THE AMENDMENT.
THE ISSUE AS TO WHAT RECORDS
WOULD BE, AND IT IS CROW
CONTROLLED BY THE PLAIN
LANGUAGE OF THE AMENDMENT
AND IT DOES SAY UPON ITS
EFFECTIVE DATE, PATIENTS
WILL HAVE ACCESS TO ANY
RECORD AND IT DEFINES A
PATIENT AS THOSE WHO HAD
PREVIOUSLY UNDERGONE
TREATMENT.
SO I'D LIKE YOU TO ADDRESS
NOT JUST THE ANY RECORD, BUT
BY DEFINE AGPATIENT AS ONE
WHO HAD PREVIOUSLY UNDERGONE
TREATMENT, -- DEFINING A
PATIENT AS ONE WHO HAD
PREVIOUSLY UNDERGONE
TREATMENT, DOESN'T THAT BY
ITS PLAIN LANGUAGE, THAT, TO
ME, IN OTHER WORDS, WOULD BE
A STRAINED INTERPRETATION TO
SAY THAT SOMEONE WHO
PREVIOUSLY UNDERWENT
TREATMENT COULD
PROSPECTIVELY GET RECORDS IN
THE FUTURE THAT WOULD RELATE
TO NOTHING ABOUT THEIR
TREATMENT.
SO IF YOU --
>> PREVIOUSLY IS NO
DIFFERENT THAN THE WORD
EXISTING IN MEMORIAL
HOSPITAL AND YOU DROSED THAT
BRIDGE ALREADY BUT IT SOUNDS
HARSHER.
>> NOT THAT IT SOUNDS HARSH
TFLT SOUNDS CONTRARY TO WHAT
THE PLAIN LANGUAGE MEANS.
IN OTHER WORDS, I AGREE,
OKAY, THAT WE, EVEN IF IT'S
HARSH, IT DOESN'T MATTER.
RITHER QUESTION OF WHAT WAS
INTENDED.
-- IT'S THE QUESTION OF WHAT
WAS INTENDED.
BUT IN LOOKING AT THE PLAIN
LANGUAGE AND AS WELL AS EVEN
THE BALLOT SUMMARY THAT
WOULD SAY THE PATIENTS WOULD
GIVE THE RIGHT TO REVIEW
UPON RECORDS OF REQUESTS OF
HEALTH CARE FACILITIES T.
DOESN'T SAY RECORDS THAT
WILL THEN COME INTO
EXISTENCE AFTER THE DATE OF
THE AMENDMENT T. SAYS
RECORDS --
>> IT DOESN'T SAY RECORDS
THAT PRE-EXISTS.
BUT, YOUR HONOR.
>> LET ME ASK YOU THIS
QUESTION.
THE DAY AFTER THE PATIENT
HAS THE RIGHT TO RECEIVE THE
RECORDS, THE DAY AFTER,
THERE ARE NO RECORDS THAT
THEY WOULD HAVE A RIGHT TO
GET BECAUSE THERE'S NOTHING
--
>> CORRECT.
THAT'S WHAT JUSTICE ANSTEAD
SAID.
>> BUT THE LANGUAGE SAYS,
WHEN THEY ARE VOTE TONG THE
AMENDMENT WOULD GIVE THEM
THE RIGHTS TO REQUEST
RECORDS OF HEALTH CARE
FACILITIES.
WHERE DOES IT SAY RECORDS
THAT COME INTO EFFECT AN THE
-- AFTER THE DATE OF THIS
AMENDMENT?
>> IT IS NOT OBLIGED TO SAY
THAT BUT IT IS OBLIGED UNDER
YOUR DECISIONS TO SAY
RECORDS THAT PREEXIST THE
DATE WHEN THIS RIGHT EXISTS
BUT YOUR HONOR, EVEN IF I'M
WRONG ON THAT, NOT WRONG, I
CAN'T BE WRONG ON THAT, EVEN
IF YOU DISAGREE WITH THAT,
REASONABLY DISAGREE.
>> I CAN'T EVER IMAGINE YOU
BEING WRONG.
[LAUGHTER]
>> I APPRECIATE THAT.
YOU STILL HAVE TO GET PAST
THE NEXT STEP.
WHICH IS DOES HAVE THAT
RETROACTIVE EFFECT DOES
ABRIDGE, IMPAIR, OR DESTROY
EXISTING RIGHTS AND THAT'S A
PRETTY HIGH HURDLE TOO
BECAUSE NOW WHAT YOU'VE GOT
IS THE INQUIRY DOES THIS
CONSTITUTIONAL RIGHT THAT'S
BEEN CREATED CREATE NEW
OBLATIONIGATION OR NEW LEGAL
-- OBLIGATION NEW LEGAL
CONSEQUENCES TO EVENTS
BEFORE ITS ENACTMENT AND
SURELY IT DOES.
THE PHYSICIANS, THE NURSES,
ALL THE PEOPLE WHO WENT
THROUGH THE
CONFIDENTIALALITY, THE
HOSPITALS THAT CREATED THE
RECORDS, THE ALL WERE MADE
WITH THE ASSURANCE OF
CONFIDENTIALITY.
>> BUT CAN ONE PLACE THE
CONCEPT OF KNOWLEDGE OF THAT
DOES THAT PLACE DISCLOSURE
OTTHAT IN THE SAME
CONSEQUENCE, THE ADVERSE
CONSEQUENCE.
DOES THE KNOWLEDGE OF THAT
EVENT DOES THAT EQUATE TO A
CONSEQUENCE.
YOU SAID THE TEST IS.
>> THERE'S MORE THAN JUST
THE KNOWLEDGE OF THE EVENT.
THIS AMENDMENT NOW REQUIRES,
AND THAT'S WHY THE
LEGISLATION WAS ENACTED, THE
HOSPITALS TO GO THROUGH A
MASSIVE PROCESS TO FIGURE
OUT WHAT IT IS THEY HAVE TO
PROVIDE.
>> YOU ARE SAYING THAT'S THE
CONSEQUENCE.
NOT THE DISCLOSURE OF THE
INFORMATION.
BUT THE REQUIREMENT THAT
THEY MUST DO SOMETHING.
>> IT'S, ONE OF THE
CONSEQUENCES.
THE OTHER ONE IS THE FACT
THAT NOW THE SCRUB NURSES OR
THE PHYSICIANS WHO HAVE GONE
THROUGH CANDID ASSESSMENT
BECAUSE THEY NEEDED TO IN
THESE PROCESSES ARE NOW
BEING DISCLOSED.
>> THAT'S WHAT I'M ASKING.
IS THE MERE DISCLOSURE, IS
THAT THE TYPE OF CONSEQUENCE
THAT WE ARE TALKING ABOUT IN
THOSE CASES WHERE WE MAKE
THAT DISTINCTION BECAUSE
THERE'S CERTAINLY BEST
VESTED RIGHTS THAT MAY ARISE
THAT YOU CANNOT GO AND
REMOVE VESTED RIGHTS SO I AM
ASKING S THE DISCLOSURE IN
AND OF ITSELF THAT KIND OF
CONSEQUENCE AS OPPOSED TO A
SANCTION AGAINST THEM, FOR
EXAMPLE.
>> OUR POSITION IS, YES IT
IS, AND --
>> DO WE HAVE ANY LAW THAT
SAYS THAT?
>> YES, I DO.
IT'S MYERS v. HAWKINS CASE
AND I WANT TO TAKE YOU AWAY
FROM THE WORD VESTED BECAUSE
THAT'S NOT REALLY THE TEST.
MYERSS. HAWKINS IN THIS
COURT REALLY PINNED ON
WHAT'S INVOLVED HERE BUT
WHEN YOU SAID IT'S EXTREMELY
DIFFICULT TO, TO ESTABLISH
DEFINITE CRITERIA, AND THEN
WENT ON TO SAY WHAT THE END
IS THIS OBJECTIVE ABOUT
EXISTING RIGHTS AND WHETHER
THEY HAVE BEEN ABRIDGED,
SUBTLE JUDGMENTS CONCERNING
THE FAIRNESS AND UNFAIRNESS
OF APPLY AGNEW
CONSTITUTIONAL AMENDMENT
RULE TO AFFECT INTEREST
WHICH ACCRUED OUT OF EVENTS
WHICH TRANSPIRED TO THE END
THAT, QUOTE, SETTLED
EXPECTATIONS HONESTLY
ARRIVED AT WITH RESPECT TO
SUBSTANTIAL INTERESTS OUGHT
NOT TO BE DEFEATED.
>> WELL, IS THE DISCLOSURE,
AGAIN, A SUBSTANTIAL -- WE
ARE REALLY GETTING RIGHT
BACK TO THIS.
IT'S A LINGUISTIC KIND OF
GAME AND WE NEED NOT PLAY
THAT.
WHAT WE NEED TO DO IS
UNDERSTAND WHAT THE CRITERIA
REALLY MEANS.
>> I ABSOLUTELY AGREE.
WE DON'T NEED THE WORD
GAMES.
WE DON'T NEED TO LABEL T. WE
KNOW IT IS SUBSTANNATIVE
RIGHT.
WE DON'T NEED TO CALL IT
EXPECTED ACTION.
THE WHOLE PEER REVIEW SYSTEM
DEPENDED ON THIS.
>> THAT YOU BELIEVE IS THE
KEY, THE EXPECTATION.
>> THAT PLUS ALL -- THE
EXPECTATION OF EVERYBODY WHO
WAS INVOLVED IN AMASSING THE
MATERIAL AND PARTICIPATING.
JUSTICE CONVINCE HAD A
QUESTION.
>> MY PROBLEM IS THIS.
IT SEEMS THAT YOU ARE SAYING
BASICALLY THAT ALL OF THIS
INFORMATION IS GOING TO HAVE
TO BE DISCLOSED BUT AS I
READ THIS AMENDMENT, IT
SEEMS TO ME THAT WHAT IS
BEING DISCLOSED REALLY IS
THE ADVERSE MEDICAL
INCIDENTS, WHICH MAY BE
CONTAINED IN THESE PEER
REVIEWS, THESE RECORDS
CONCERNING THOSE RECORDS,
THAT KIND OF THING SO WE ARE
NOT REALLY TALKING ABOUT A
MASSIVE PRODUCTION OF ALL
THAT INFORMATION.
AREN'T WE REALLY TALKING
ABOUT A SMALLER AMOUNT OF
INFORMATION THAT MAY BE
CONTAINED IN THOSE RECORDS.
NO, YOURB, BECAUSE YOU ARE
-- YOUR HONOR, BECAUSE YOU
ARE ASSUMING THERE IS A
DISCREET FILE YOU CAN REACH
IN AND PICK UP AND HAND --
>> NO, I AM NOT SAYING IT
MAY NOT BE CONTAINED WITHIN
OTHER DOCUMENTS BUT
CERTAINLY WE CAN GO THROUGH
PROCEDURES OF REDACTING AND
GETTING INFORMATION OUT OF
DOCUMENTS AND SO, I'M JUST
SAYING THAT, AREN'T WE
TALKING ABOUT A SMALLER
DISCREET DISCLOSURE OF
INFORMATION AS OPPOSED TO
THE MASSIVE INFORMATION
CONCERNING THE PROCESS.
>> THAT REALLY GETS TO THE
QUESTION OF WAS THE
LEGISLATURE REASONABLE IN
ENACT AGSTATUTE WHICH HELPED
DEFINE WHAT AN ADVERSE
MEDICAL INCIDENT WAS.
BECAUSE IT IS NOT DISCREET
AS YOU DESCRIBE.
IT IS AN ONGOING PROCESS.
THE, THE HOSPITALS HAVE BEEN
INSTRUCTED, PHYSICIANS HAVE
BEEN INSTRUCTED BY THE
LEGISLATURER FOR MORE THAN
20 YEARS.
>> BUT IT SEEMS TO ME, THE
AMENDMENT IT IT REALLY IS
VERY DISCREET.
IN WHAT IT IS SAYING ABOUT
AN ADVERSE MEDICAL INCIDENT.
>> THE, THE, THANK YOU.
THE AMENDMENT IS DISCREET.
IT IS NARROW.
BUT THE DISTRICT COURT
OPINIONS THAT ARE BROUGHT TO
YOU IN THESE CASES ARE VERY,
VERY BROAD.
AND THAT'S WHY I'M GOING TO
HAVE MR. WISOTSKY ANSWER
YOUR QUESTION BECAUSE WE
HAVE TO TRANSITION TO GIVE
HIM SOME TIME, AND HE WAS
GOING TO ADDRESS THE
SPECIFICS OF WHAT IS
INVOLVED.
MR. WISOTSKY, YOU'RE UP.
>> IN YOUR BRIEF -- IN THE
BRIEFS THAT WE'RE, I THINK,
MR. ENGLAND'S BRIEF
SPECIFICALLY, THERE WAS A
DIFFERENTIATION MADE BETWEEN
INFORMATION AND RECORD.
WOULD YOU ADDRESS THAT?
>> WELL, YES, YES, YOUR
HONOR.
>> WOULD YOU PLEASE GO AHEAD,
ANNOUNCE YOUR APPEARANCE.
>> YES, SIR.
STEVE WISOTSKY FOR NOTAMI
HOSPITAL DOING BUSINESS AS
LAKE CITY MEDICAL CENTER.
>> AND DON'T FORGET THE
QUESTION THAT WAS PENDING ON
THE FLOOR AFTER YOU ANSWER
THIS.
>> I SHOULD ANSWER --
>> GO AHEAD AND ANSWER THIS
QUESTION, THEN GO BACK AND
ANSWER --
>> IN OUR CASE, YOUR HONOR,
THE STURBTH CIRCUIT
COURT-ORDERED NOT ONLY THE
DISCLOSURE OF RECORDS BUT
ALSO ORDERED THE CEO OF LAKE
CITY MEDICAL CENTER TO
ANSWER ORAL QUESTIONED ON
ORAL DEPOSITION.
AND I THINK AMENDMENT SEVEN
IS CRYSTAL CLEAR THAT IT
PROVIDES A PATIENT'S RIGHT
TO KNOW VIA ACCESS TO
RECORDS.
AND IT DOES, IT SAYS NOTHING
ABOUT THE ABILITY TO ENGAGE
IN THAT KIND OF DISCOVERY.
SO, WE SUBMIT THAT THAT IS A
CLEAR ERROR IN THE
INTERPRETATION --
>> ARE YOU ARGUING OTHER
THAN THE QUESTIONS AT
DEPOSITIONS, ARE YOU ARGUING
THAT THEY CANNOT REQUEST
RECORDS IN THE CONTEXT OF
LITIGATION?
>> I'M ALSO ARGUING THAT AS
WELL.
>> WELL, IF YOU CAN HAVE
ACCESS TO RECORDS, WHY CAN'T
YOU HAVE ACCESS IN CONTEXT
TO LETIGATION?
WHY DOES THE CONTEXT MATTER?
ASSUMING YOU ARE A FORMER
PATIENT AT THIS TIME.
>> WELL, YOUR HONOR, I THINK
IT WOULD HELP IF THE COURT
WOULD PERMIT ME A FEW
MINUTES TO DEVELOP THE NEED
FOR THE LEGISLATION THAT HAS
BEEN PASSED BECAUSE IF
WE'VE, IF WE PICK AT CLAUSES
WITHOUT SEEING THE BIGGER
PICTURE, WE ARE GOING TO
LOSE SIGHT OF THE ULTIMATE
QUESTION, AND I THINK,
JUSTICE QUINCE IT WILL
ADDRESS YOUR QUESTION TOO,
BUT IF IT DOESN'T, PLEASE
REMIND ME.
BUT HERE MY PROBLEM.
AMENDMENT 7 ADDRESSES THE
PATIENT'S RIGHT TO KNOW.
WHO COULD POSSIBLY BE
OPPOSED TO A PATIENT'S RIGHT
TO KNOW.
THE PROBLEM IS AMENDMENT 7
DOESN'T REALLY SAY WHAT
DEFINES -- OR DEFINE WHAT IT
IS A PATIENT HAS A RIGHT TO
KNOW OR BY WHAT PROCEDURE
THE PATIENT HAS A RIGHT TO
KNOW.
& IF YOU LOOK AT IT WITH A
LAWYER'S EYE OR EVEN WITH A
VOTER'S EYE, PATIENT, THE
CRUCIAL TERMS OF THE
AMENDMENT ARE NOT DEFINED.
WHAT IS A PATIENT.
WE HAVE BEEN SPEAKING DURING
JUSTICE -- AS A PATIENT WAS
IN A MEDICAL OFFICE OR ABOUT
TO BE.
BUT ACCORDING TO A AMENDMENT
A PATIENT WAS ANYONE EVER
BORN IN A HOSPITAL OR HAS
EVER BEEN TO A PHYSICIAN
WITHOUT REGARD TO THE POINT
IN TIME WHICH IT WOULD OCCUR.
THAT INCLUDES --
>> WHAT IS WRONG WITH THAT
DEFINITION OF A PATIENT, A
PERSON WHO SOUGHT, IS
SEEKING, IS UNDERGOING, HAS
UNDERGONE SOME KIND OF
TREATMENT IN A HEALTH CARE
FACILITY OR BY A PROVIDER.
WHAT'S MISSING IN THAT
DEFINITION?
>> WHAT'S MISSING IS THE
NEXUS TO INITIAL ROUND OF
QUESTIONS WHICH SAID WE HAVE
A PATIENT WHO IS GOING TO A
PHYSICIAN OR SEEKING MEDICAL
CARE AND WANTS TO CHECK ON
THE TRACK RECORD OF THAT
PHYSICIAN.
>> IT SAYS IS SEEKING.
I MEAN, IT SEEMS TO ME THAT
THAT COVERS A PERSON WHO, I
GO TO MY PRIMARY PHYSICIAN
AND HE SAYS TO ME, YOU NEED
TO GO TO SEE DR. XYZ WHO IS
A SPECIALIST IN THIS
PARTICULAR AREA AND I WANT
TO KNOW WHETHER OR NOT I
REALLY WANT TO GO TO HIM OR
SOME OTHER SPECIALIST IN THE
AREA.
I WANT TO KNOW WHETHER OR
NOT HE HAS THESE ADVERSE
MEDICAL INCIDENTS.
>> AND, AND, YOUR HONOR, THE
STATUTE RESPECTS THAT
PURPOSE.
THE STATUTE, 381028 IS DRAWN
WITH THAT MODEL IN MIND.
THE MODEL OF, AND A CONCERNS
PERSPECTIVE CONSUMER OF
MEDICAL INFORMATION WHO
WANTS TO CHECK ON THE, ON
THE CREDENTIALS AND, AND
QUALIFICATIONS OF, AND TRACK
RECORD OF A PHYSICIAN OR A
HOSPITAL.
BUT THE, THE AMENDMENT AS
ARGUE SAID BY THE OPPONENTS
IN THIS CASE AND AS
INTERPRETED BY THE FIRST AND
FIFTH DISTRICT IS AS BROAD
AS ALL OUTDOORS.
IT SAYS VIRTUALLY ANYTHING
GOES BACK TO THE FIRST DAY
OF OPERATION OF A HOSPITAL.
THERE IS NOT EVEN A LOOKBACK
PERIOD.
>> YOU ARE TALKING ABOUT
WHETHER IT'S SELF-EXECUTING
OR WHETHER YOU NEED ENABLING
LEGISLATION?
>> IT IS NOT, IT IS NOT WE
SUBMIT THAT IT IS NOT
SELF-EXECUTING.
>> HAVEN'T WE HELD THAT THE
FACT THAT LANGUAGE IN A
STATUTE WILL NEED TO BE
IRONED OUT LATER IS NOT
NECESSARILY MEAN IT'S NOT
SELF-EXECUTING.
>> NOT NECESSARILY, YOUR
HONOR, BUT THE PRINCIPAL
CASE RELIED ON BELOW, GRAY
v. BRYSON COMPLETELY
INOPPOSITE.
THAT CASE WAS ONE JUDGE PER
50,000 POPULATION A. SIMPLE
MATHEMATICAL RATIO.
HERE WE HAVE A PROBLEM OF
WHO IS A PATIENT, HOW FAR
BACK IN TIME DO YOU GO, WHAT
IS A RECORD, DOES IT INCLUDE
VOICE MAIL MESSAGES?
>> THAT'S WHAT I'M HAVING
REAL TROUBLE WITH BECAUSE
THE AMENDMENT COULDN'T BE
CLEARER IN DEFINING WHO A
PATIENT IS, AND AS JUSTICE
QUINCE SAID, IT IS AS BROAD
AS EVERYBODY.
AND THIS COURT KNEW WHAT
THIS AMENDMENT DID, AS I WAS
THINK THE VOTERS WOULD, WHEN
WE SAID IN THE ADVISORY
OPINION THAT UNQUESTIONABLY,
THE AMENDMENT WILL AFFECT
THESE STATUTORY PROVISIONS,
THE PROCEEDINGS AND RECORDS
OF PEER REVIEW PANEL FROM
DISCOVERY A IN A CIVIL OF
ADMINISTRATIVE ACTION SO
WERE WE WRONG WHEN WE SAID
WHAT EFFECT THE AMENDMENT
WAS GOING TO HAVE.
>> I WOULD NEVER SAY THAT,
YOUR HONOR.
[LAUGHTER]
YES, CLEARLY DOES -- IT WILL
AFFECT THE PRIVILEGES TO THE
EXTENT OF DISCLOSE AGFINAL
REPORT.
IT WILL NOT AFFECT IT IN
ABOLISHING PEER REVIEW.
>> NOW DO WE AGREE ON THIS.
THAT WHAT IS NOT AT STAKE
HERE THAT NOBODY IS SAYING
THAT THE IMMUNITY THAT
PEOPLE ENJOYED BEFORE THIS
AMENDMENT, THAT IS IMMUNITY
FROM PARTICIPATING OR EVEN
NOW, TESTIMONIAL COMPULSION,
I SEE THAT AS BEING
DIFFDIFFERENT AND I DIDN'T
REALIZE THAT WE HAD AS A
CERTIFIED QUESTION WHETHER
SOMEBODY COULD ANSWER THE
QUESTIONS BECAUSE I DO THINK
THAT IS A DIFFERENT ISSUE.
>> EXCUSE ME FOR
INTERRUPTING.
THAT WAS NOT CERTIFIED.
THE CERTIFIED QUESTIONS ARE
IN THE COMPANION CASE.
THE BUSTER CASE.
WE DON'T HAVE ANY CERTIFIED
QUESTION.
>> SO IS THE ISSUE WHETHER
SOMEBODY IS COMPELLED TO
TESTIFY BECAUSE I DIDN'T
REALIZE --
>> IT SHOULD BE.
WE RAISED THE ISSUE WITH THE
FIRST DISTRICT BUT THEY
SIMPLY DID NOT ADDRESS IT.
>> IT IS NOT PART OF THEIR
OPINION?
>> IT IS NOT PART OF THEIR
OPINION, IT IS PART OF THEIR
CASE.
IT IS PART OF THE REASON WHY
WE ARE APPEALING.
>> BUT I HAVE A HARD TIME
THAT THE LEMG SLACHER BY SAY
AGPATIENT HAS ONLY GET
SOMETHING WHEN IT HAS TO DO
WITH SAME OR SIMILAR
CONDITIONS ISN'T A
SIGNIFICANT RESTRICTION OR
ALTERATION OF THE PLAIN
LANGUAGE OF THIS AMENDMENT.
>> WELT, LET ME SAY TWO
THINGS, YOUR HONOR.
FIRST OF ALL, ADVERSE
MEDICAL INCIDENT REPORT HAS
NOT -- WAS NOT ADEQUATELY
DEFINED OR RECOGNIZED BY, BY
THE, BY THE COURTS BELOW.
THEY'RE TREATING IT AS, AS
SOMETHING THAT YOU CAN LOOK
AT AND YOU KNOW WHAT IT IS.
WHEN THE AMENDMENT 7
SUBSECTION C 3 SAYS THAT IT
HAS TO BE BASED ON FAULT OR
NEGLECT OF THE HOSPITAL OR
HEALTH CARE PROVIDER, NUMBER
1, AND THERE HAS TO BE
CAUSATION.
THIS IS SOMETHING A RISK
MASKER OR A PHYSICIAN CAN
DETERMINE BY REVIEWING THE
DOCUMENTS.
AND HERE'S THE PROBLEM.
YOU TAKE A TYPICAL LARGE
HOSPITAL.
IT TREATS TENS OF THOUSANDS
OF PATIENTS, IN-PATIENTS,
OUTPATIENTS, EMERGENCY ROOM
ADMISSIONS, SURGICAL
PROCEDURES, DYING NOSTIC
PROCEDURES.
IT GENNERATES TONS OF
DOCUMENTS.
SOME OF THEM ELECTRONIC,
SOME OF THEM ON PAPER, SOME
OF THEM STORED ON SITE, SOME
OF THEM STORED OFF SITE.
HUNDREDS OF THOUSANDS OF
DOCUMENTS F. AMENDMENT 7
MEANS ANYTHING GOES, YOU ARE
GOING TO BE DIVERTING
MASSIVE AMOUNTS OF HOSPITAL
PERSONNEL, SKILLED PERSONNEL,
NOT MERE CLERICAL PERSONNEL,
WHO, WHO NEED TO MAKE A
MEDICAL JUDGMENT ABOUT
WHETHER OR NOT A DOCTOR --
>> I THINK THAT BRINGS ME
BACK TO THE QUESTION THAT I
HAD ORIGINALLY IS THAT I
THINK THAT YOU ARE BLOWING
THIS OUT TO, YOU KNOW, WAY
OUT OF PROPORTION BECAUSE
THE AMENDMENT ITSELF TALKS
ABOUT ADVERSE MEDICAL
INCIDENTS, AND YES, THERE
ARE ALL KINDS OF OTHER
DOCUMENTS AND MILLIONS OF
DOCUMENTS THAT ARE GENERATED
BY HOSPITALS AND MEDICAL
CARE PROVIDERS.
BUT THIS AMENDMENT IS, IS
ABOUT THESE INCIDENTS.
AND THAT'S WHAT A PATIENT
HAS A RIGHT TO KNOW.
WHETHER OR NOT THE, THE
DOCTOR HAS HAD SOME OTHER
PERSON SAY THAT THEY'VE DONE
SOMETHING, THAT THEY HAVE
LEFT SOME SCALPEL IN
SOMEONE.
THOSE ARE THE KINDS OF
THINGS THAT THIS AMENDMENT
IS DESIGNED TO GET TO.
>> AGREED, YOUR HONOR, AND
THE STATUTE HONORS THAT BY
SAYING TO THE HOSPITAL
PERSONNEL, GO TO THE
DEFINITIONS CONTAINED IN
395.01917 AND LOOK AT THE
LIST THERE WHICH GOES FROM
CETH TO ALL THE WAY DOWN TO
-- DEATH ALL THE WAY DOWN TO,
YOU KNOW, LEAVING IMPLEMENTS
BEHIND T. HAS A DETAILED
LIST OF THINGS THAT MUST BE
REPORTED BY LAW BY RISK
MANAGERS TO THE STATE
DEPARTMENT OF HEALTH.
THOSE ARE THE THINGS WHICH
WHEN A FINAL REPORT COMES
OUT AND FINDS THAT THERE IS
FAULT AND CAUSATION ON THE
PART OF THE HEALTH CARE
PROVIDER OR THE HOSPITAL,
THOSE ARE THE KINDS OF
THINGS THAT WOULD CONSTITUTE
UNDER THE STATUTE AN ADVERSE
MEDICAL INCIDENT WHICH THE
PATIENT WOULD HAVE A RIGHT
TO ACCESS.
>> AND SO ARE WE, ARE WE
GOING TO LIMIT THIS JUST
BECAUSE IT MAY BE SOME
DIFFICULTY IN, IN THE
HOSPITAL OR THE PROVIDER
GETTING TO THE INFORMATION?
>> YOUR HONOR --
>> I MEAN I'M SURE IT MAY
TAKE SOME TIME AND SOME
EFFORT TO GET TO THIS, BUT
THAT HAPPENS IN ALL KINDS OF
DISCOVERY --
>> SEE, THIS IS THE PROBLEM
WITH COMING UP ON CERT FROM
A DISCOVERY RECORD.
WE DON'T HAVE THE A RECORD
TO SHOW THE MASSIVE AND
PERVASIVE AND FINANCIAL
IMPACT THAT IT IS GOING TO
HAVE AN HOSPITAL STAFF.
IN ADDITION TO THE FORMAL
COMPLAINTS, WE HAVE PATIENT
COMPLAINTS, INFECTION
CONTROL, CLEANLINESS,
HOUSEKEEPING, BEHAVIORAL
ISSUES, MISDIAGNOSIS, SKILLS,
COMPETENCIES.
>> A LOT OF THOSE THINGS YOU
ARE GOING TO DON'T SEEM TO
MEET THE DEFINITION OF
ADVERSE MEDICAL INCIDENT IN
THE AMENDMENT.
>> NO, ONLY IF THERE'S FAULT
AND CAUSATION BY THE
HOSPITAL.
THAT IS THE THING THAT'S
MISSING FROM THE LOWER COURT
OPINIONS.
>> YOU SAID PATIENT
COMPLAINTS AND THINGS LIKE
THAT.
>> A PATIENT COMPLAINT
DOESN'T MEAN THERE IS FAULT,
NEGLECT.
>> RIGHT, SO YOU ARE SAYING
THEY HAVE TO PRODUCE ALL
THESE THINGS.
>> THEY HAVE, -- NOT PRODUCE
THEM, YOUR HONOR, THEY HAVE
TO REVIEW THEM.
WHO CAN REVIEW THEM?
WE CAN'T TAKE A TEMPORARY
CLERICAL WORKER.
>> WELL, BUT, SEE, PATIENT
COMPLAINT MIGHT NOT HAVE
BEEN EVEN PROTECTED
BEFOREHAND.
I MEAN, I, THIS IS, AGAIN,
I'M NOT, TRYING TO MINIMIZE
THAT THIS IS CHANGING THE
LANDSCAPE FOR HOSPITALS, BUT,
YOU KNOW, THE FACT THAT
SOMEBODY IN A PEER REVIEW
COMPLAINT MIGHT SAY, YOU
KNOW, DR. X IS REALLY
QUIRKY.
HE'S SORT OF GOES AROUND AND
HE'S GOT A TICK, AND YOU
KNOW, WE THINK HE'S A LITTLE
ODD, THAT'S NOT GOING TO BE,
THAT'S NOT PRODUCIBLE.
BUT OR A PATIENT SAYING I
DIDN'T LIKE THE DR. XY'S
ATTITUDE.
>> A PATIENT COMPLAINT, YOUR
HONOR,.
>> THAT'S NOT, THAT'S NOT
WITHIN WHAT AN ADVERSE
MEDICAL INCIDENT S SO THAT'S
HOW THAT GETS FERRETED OUT
IN DISCOVERY.
>> BUT IT DOESN'T GET
FERRETED OUT UNTIL IT'S
SCREENED OUT.
SOMEBODY HAS TO --
>> BUT THAT'S TRUE WITH ANY
DISOVERY.
BEFOREHAND I COULD'VE ASKED
THE QUESTION HAS ANYBODY
COMPLAINED ABOUT DR. X AND
THAT WASN'T PROTECTED BY A
PRIVILEGE.
YOU CAN EITHER SAY IT'S
BURDENSOME OR NO, I MEAN,
I'M HAVING A HARD TIME WITH
THIS BURDENSOME PART.
>> I'M SORRY I CAN'T
PERSUADE YOU BUT WHAT YOU
HAVE TO UNDERSTAND IS THE
LEGISLATURE DID NOT ACT
PRECIPITOUSLY.
THE LEGISLATURE ACTED
AGAINST A LOOMING CRISIS
THAT PPERCEIVED IN THE
HEALTH CARE SYSTEM.
AND NOT ONLY WITH THE SHEER
VOLUME OF IT BUT ITS IMPACT
ON PEER REVIEW.
KRUGER v. LUV AND JUST A FEW
WEEKS AGO IN THE BRANDON
CASE, EFFECTIVE PEER REVIEW
IS INDISPENSABLE TO
IMPROVING THE QUALITY OF
CARE AND KEEPING COSTS DOWN
AS WELL AND SOME OF THE
THINGS THAT WE JUST SPOKE OF,
YOUR HONOR, WOULD END UP,
SOME OF THEM WOULD BE
SCREENED OUT BUT SOME OF
THEM WOULD BE IN PEER REVIEW
OR MEDICAL REVIEW
COMMUNITIES AND RISK
MANAGEMENT SO WHAT YOU ARE
TALKING ABOUT, I SEE MY TIME
IS UP.
>> JUST BRING YOUR ANSWER TO
A CONCLUSION.
>> WHAT YOU ARE TALKING
ABOUT IS A RADICAL UPHEAVAL
IN THE HEALTH CARE SYSTEM
WHICH LOOKING AT THE 56
WORDS OF THE BALLOT SUMMARY,
NO VOTER OR EVEN AN ORDINARY
LAWYER WOULD BE ABLE TO
APPRECIATE.
>> MR. EQUELS.
>> MAY IT PLEASE THE COURT,
I'M TOM EQUELS.
I'M HERE REPRESENTING THE
FAMILIES OF THE BOWEN, GREEN,
AND NICELY FAMILIES, EXCUSE
ME.
ALL OF WHOM HAD SUFFERED
TRAGIC LOSS AT THE HANDS OF
ONE DOCTOR AT NOTAMI
HOSPITAL ACCORDING TO THE
ALLEGATIONS OF THE
COMPLAINTS.
>> ARE YOU GOING TO ADDRESS
THE RETROACTIVITY ISSUE?
>> I WAS GOING TO SAY
JUSTICE CANTERO, THAT WE'RE
GOING TO SPLIT UP OUR
ARGUMENT IN THE INTEREST OF
NOT HAVING ANY REDUNDANCY.
I WAS GOING TO ADDRESS
UNCONSTITUTIONALITY AND THE
SELF-EXECUTING NATURE OF THE
AMENDMENT.
AND MR. CAR LYLE, WHO, WHO
WAS THE, IS THE COUNCIL FOR
THE BUSTER FAMILY WILL BE
ADDRESSING RETROACTIVITY AND
THE RELATED ISSUES.
>> PLEASE, GO AHEAD.
YOU ARE USING MUCH OF YOUR
TIME EXPLAINING WHERE YOU
ARE, SO.
>> OKAY.
THANK YOU.
>> TIME IS PASSING.
>> I WOULD LIKE TO SAY I AM
HONORED AND HUMBLED TO BE
HERE IN PART BECAUSE THIS IS
A RARE OCCURRENCE FOR ME TO
APPEAR BEFORE THIS TRIBUNAL.
>> WELCOME TO THE COURT.
>> THANK YOU, YOUR HONOR.
BUT PRIMARILY, BECAUSE --
>> YOU'RE NOT SUGGESTING
THAT, THAT THIS, THIS
STATUTE SHOULD BE IN TOTO
HELD UNCONSTITUTIONAL, ARE
ROW YOU?
>> YES, I AM.
>> IN TOTO?
WHAT'S THE BASIS THAT WE
WOULD HOLD A, AN ENTIRE
STATUTE UNCONSTITUTIONAL
UNLESS WE GO DOWN THROUGH IT
AND SEE THAT EVERY PART OF
IT IS IN CONFLICT WITH THIS
PROVISION?
>> YOUR HONOR --
>> -- OF THE CONSTITUTION.
>> THERE'S NO QUESTION THAT
PURSUANT TO THE RULING IN
THE CRAMP CASE THAT THERE IS
A CONCEPT OF SEVERAL,
SEVERABILITY THAT HAS TO BE
RESPECTED WHEN DEALING WHEN
UNCONSTITUTIONAL PROVISIONS
OF STATUTES, HOWEVER, IN
THIS PARTICULAR CASE, IF I
MAY, WHEN YOU COMPARE
AMENDMENT 7 ON THE ONE HAND
WITH THE STATUTE ON THE
OTHER, YOU FIND YOU FIND
THAT THE STATUTE EFFECTIVELY
DISABLES OR EVISCERATES THE
WHOLE CONCEPT OF AMENDMENT
7.
>> BUT, BUT THE AMENDMENT ITSELF
CONTEMPLATES THAT THERE IS
GOING TO BE AN IMP LMENTATION
BY GENERAL LAW.
-- IMPLEMENTATION.
IT REPEATS THE WORD GENERAL
LAW WITHIN THE BODY OF THE
AMENDMENT.
>> JUSTICE WELLS, THERE IS
NO QUESTION IN THIS, I THINK,
ADDRESSES JUSTICES CANTERA,
JUSTICE CANTERO'S EARLIER
QUESTION REGARDING THE SAME
ISSUE THAT UNDER GRAY v.
BRYANT, THIS COURT HAS RULED
THAT A SELF-, A
CONSTITUTIONAL AMENDMENT MAY
BE SELF-EXECUTING AND STILL
HAVE FURTHER LEGISLATION.
BUT THAT LEGISLATION CANNOT
BE INCONSISTENT WITH OR --.
>> WHY DON'T YOU GET ON WITH
THAT AS OPPOSED TODAY BROAD
THING OF -- OPPOSED TO THE
BROAD THING OF THE WHOLE
LEGISLATIVE SCHEME BEING
UNCONSTITUTIONAL.
WHAT PARTS OF THE STATUTE DO
YOU FEEL ARE PARTICULARLY
EGREGIOUS AND IN CONFLICT
WITH THIS NEWLY INACTED
CONSTITUTIONAL PROVISION?
WHAT PARTS -- WOULD YOU PUT
AT THE TOP OF THE LIST THAT
ARE IN CONFLICT?
>> IT WOULD BE MY PLEASURE,
YOUR HONOR.
FIRST AND FOREMOST, ARTICLE
TEN 2nd 25, -- SECTION 25
PROVIDES FOR 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.
NOW, WHEN WE LOOK AT SECTION
381.028 SUBSECTION 3 J, WE
FIND THAT THIS DISCLOCHESER
LIMITED TO FINAL REPORTS.
SO THAT'S AN INCONSISTENCY,
A REPUGNANCY THAT CANNOT
STAND BECAUSE THE LAW IS
CLEAR THAT STATUTES THAT ARE
INCONSISTENT WITH THE
CONSTITUTION PUST GIVE WAY
TO THE CONSTITUTION BECAUSE
--
>> SO, IT'S YOUR VIEW THAT
IT'S MUCH TOO NARROW A
READING OF WHAT THE
CONSTITUTIONAL PROVISION
INTEND UNDER.
>> YES, YOUR HONOR.
THE THE PLAIN LANGUAGE OF
THAT AMENDMENT, SO CLEARLY
CALLS FOR A MORE EXPANSIVE
CONCEPT OF RECORDS THAT THE
STATUTE BY RESTRICTING IT TO
A FINAL REPORT IS NOT
CONSISTENT WITH THE STATUTE.
>> SO WHILE YOU ARE THERE,
WOULD YOU ADDRESS JUSTICE
QUINCE'S EARLIER QUESTION.
TO YOUR OPPONENTS ON THE
OTHER SIDE AS FAR AS, YOU
KNOW, WHAT, WHAT INFORMATION
OR RECORDS ARE WE TALKING
ABOUT?
UNDER THIS CONSTITUTIONAL
AMENDMENT?
IS IT, IS MR. WISOTSKY
POINTS OUT HERE, GIVE ME THE
KEY TO THE HOSPITAL DOOR,
AND WE'RE GOING TO GO IN
THERE AND RUMINATE THROUGH
THE WHOLE OR WHAT IT IS?
WHAT IT IS?
>> IF I MAY, AND THIS
REQUIRES SOME LEVEL OF
SPECULATION BECAUSE WE DON'T
HAVE THE RECORDS THAT THE
COURT-ORDERED PRODUCED BUT
IN OUR PARTICULAR CASE, IF A
PARENT WERE TAKE AGTEENAGER
TO NOTAMI HOSPITAL FOR
SURGERY, THE PRIMARY
PHYSICIAN IS RECOMMENDED,
DR. PENDRICK AS THE SURGEON
AND THAT PARENT ASKS FOR THE
RECORDS RELATED TO ADVERSE
MEDICAL INCIDENTS, THAT
PARENT SHOULD BE ENTITLED TO
KNOW THAT THERE HAD BEEN A
NUMBER OF DEATHS ATTRIBUTED
TO POTENTIALLY NEGLIGENT
EVISCERATION DURING SURGICAL
PROCEDURES, IN OTHER WORDS,
THEIR BOWEL --
>> BY, BY.
>> BY DR. PENDRICK AND THIS
IS SOMETHING I WOULD THINK
IN OUR AGE OF HEALTH CARE
THAT ANY PERSON
CONTEMPLATING HEALTH CARE,
PROCEDURES THAT ARE --
>> LET ME ASK YOU A QUESTION
ON THIS, AND I'VE FINAL
REPORT MAY BE TOO LIMITED,
BUT IF WE ACCEPT YOUR
ARGUMENT THAT WHAT THE
HOSPITAL CAN ALSO DO IS JUST
GIVE THEM FOUR FILE DRAWERS
OF INFORMATION THIS POOR
PERSON IS TRYING TO FIGURE
OUT WHAT YOU'RE SAYING, AND
JUST GIVE THEM A WHOLE FILE
WORTH OF ALL THE NURSING
RECORDS, ALL THE ADMISSION
RECORDS, THE WHOLE THING AND
SAY HERE S. THAT GOING TO
SATISFY THE NEED HERE?
>> WELL, I DON'T THINK THAT
THAT'S WHAT'S CONSPLATED BY
THE AMENDMENT EITHER.
JUSTICE BELL.
AND, AND IT, THIS CONCEPT OF
ADVERSE MEDICAL INCIDENT,
YOU KNOW, CLARIFIES.
THIS FAMILY, AND THIS
HYPOTHETICAL SITUATION,
WANTS TO KNOW THAT WHEN,
WHEN THE, THEY ENTRUST THEIR
12-YEAR-OLD TO THE KNIFE OF,
OF THIS DOCTOR, THAT IT'S
SOMEBODY THAT THEY CAN BE
SAFE AND SECURE IN FEELING
IS A COMPETENT AND WORTHY --
>> AND DOESN'T A DISCREET --
AND DOESN'T A DECRETE FINAL
REPORT ON THAT QUESTION AS
OPPOSED TO THE ENTIRE
MEDICAL RECORDS OF THE
TREATMENT OF A PERSON IN
WHICH AN INCIDENT OCCURRED
ACHIEVE THAT, THAT GOAL OF
KNOWING?
>> WELL, THE PEER REVIEW
PROCESS MAY HAVE ADDITIONAL
RECORDS OUTSIDE THE FINAL
REPORT THAT WOULD BE GERMANE
AND PERTINENT TO THAT
ANALYSIS.
YOU KNOW, SO CERTAINLY AFTER
--
>> WOULDN'T THAT REALLY BE
MORE PERTINENT TO THE
LITIGATION ASPECT OF IT AS
OPPOSED TO THE DECISION ON
WHETHER OR NOT TO USE THE
PHYSICIAN IN THE FIRST
PLACE?
>> WELL, CLEARLY, CLEARLY,
THE PERSONS WHO SUFFERED
FROM ADVERSE TREATMENTS, WHO
ARE ENTITLED TO THE RECORDS
THEY WOULD HAVE A MUCH MORE
BROADER SCOPE OF ACCESS TO
RECORDS.
BUT THE AMENDMENT GIVES THEM
ALL ACCESS TO RECORDS RELATED
TO ADVERSE HEALTH CARE
INCIDENTS F. I MAY, I ONLY
GOT TO MY FIRST --
>> PLEASE KEEP GOING.
YOU ARE RUNNING OUT OF TIME
VERY RAP UDTLY.
>> DO YOU AGREE WITH ALL --
>> ARTICLE --
>> DO YOU AGREE WITH THE
ONES THAT ARE LISTED IN THE
FIRST DCA OPINION?
DEER AGREE WITH ALL OF
THOSE.
>> YES, I DO AND THERE ARE
SOME ADDITIONAL ONES.
>> WELL, WHY DON'T YOU GET
TO THE ADDITIONAL ONES.
>> WELL, THE FIRST DCA
POINTED OUT THAT THERE WAS
NO TIME LIMITATION IN OUR,
THE AMENDMENT.
HOWEVER, SECTION 381.0825
SAYS IT ONLY RELATES TO
RECORDS CREATED AFTER
NOVEMBER 2nd BUT IT ALSO IN
THAT SAME SUBSECTION CREATES
A STATUTE OF REPOSE.
WHICH IS NOT CONTEMPLATED
ANYWHERE IN THE, IN THE
AMENDMENT.
SAYING YOU ARE ONLY ENTITLED
TO RECORDS GOING FOUR YEARS
BACK.
THAT AGAIN IS A LIMITATION
BECAUSE THAT PARENT MIGHT
WANT TO KNOW THAT IN AN
APPENDECT OIM FIVE YEARS AGO,
THIS DOCTOR, THROUGH
NEGLIGENCE KILLED ANOTHER
CHILD BY ACCIDENTALLY
DISEMBOWELING HIM.
THIS IS THE KIND OF THING
THAT, THAT I UNDERSTAND THE,
THE SPECIAL INTEREST OR
ORIENTATION, AND WHY IT'S
IMPORTANT FOR THIS INDUSTRY,
BUT IT IS INCONSISTENT WITH
THE INTENT OF THE AMENDMENT.
>> SO YOU AGREE THIS IS AN
ENORMOUS RESPONSIBILITY.
IF YOU HAD A PHYSICIAN
THAT'S BEEN PRACTICING IN A
20 YEARS AND THEY MICROFICHE
AFTER FOUR YEARS, YOUR
INTERPRETATION WOULD BE, AND
I THINK CONSISTENT THAT THE
HOSPITAL WOULD HAVE TO GO
AND NOT ONLY TAKE CARE OF
EXISTING RECORDS, COMPUTERIZED
OR OTHERWISE GO BACK AND
MICROFICHE AND PRODUCE ALL
THESE RECORDS.
>> TO THE EXTENT THAT THERE
ARE THESE TYPE OF RECORDS
THAT EXIST FOR THAT
PHYSICIAN, YES.
AND I THINK THAT THE
COMPLIANCE -- SOTHAT'S AN
ENORMOUS RESPONSIBILITY.
YOU HAVE TO ADMIT THAT'S AN
ENORMOUS RESPONSIBILITY,
BURDEN.
>> JUSTICE BELL, THAT THE
PEOPLE OF FLORIDA HAVE, HAVE
PLACED A RESPONSIBILITY ON
THIS INDUSTRY.
THEY HAVE CALLED UPON THEM
TO MAKE THE ACCESS TO THIS
INFORMATION AVAILABLE TO
PATIENTS.
AND THAT ACCESS A PART OF A
NEW ERA IN HEALTH CARE, YOU
KNOW, THE IDEA OF PATIENT
SELF-DETERMINATION HAS
BECOME VERY IMPORTANT.
YOU KNOW, WE ARE NO LONGER
IN AN ERA OF PHYSICIAN
PATERNALISM.
PATIENTVISE A RIGHT TO KNOW,
AND THEY HAVE A RIGHT TO
KNOW ABOUT THE DETAILS OF
THEIR PROCEDURE.
YOU KNOW, WHEN YOU, YOU TAKE
THIS DRUG, THESE ARE THE
SIDE EFFECTS BUT ITS IT'S
JUST AS IMPORTANT FOR THEM
TO KNOW, I SUBMIT, THAT THE
PHYSICIAN THAT'S TREATING
THEM, ESPECIALLY GIVEN OUR
MANAGED HEALTH CARE SYSTEM
WHERES YOU HAVE NO KNOWLEDGE
OF THESE PEOPLE YOU'RE
REFERRED SOMETIMES, THAT THE
PHYSICIAN WHO IS FREEING
THEM -- TREATING THEM IS
COMPETENT AND WORTHY OF
THEIR TRUST.
>> THANK YOU VERY MUCH.
>> GOOD MORNING.
MAY IT PLEASE THE COURT.
MY NAME IS CHRIS KARLYLE I'M
HERE ON BEHALF OF TERESA
BUTLER I AM GOING TO BE
ADDRESSING THE RETROACTIVITY
ISSUE WHICH I THINK FRANKLY
IS THE, PERHAPS THE MOST
IMPORTANT ISSUE HERE, IS THE
ONLY ISSUE THAT THE THREE
DISTRICT COURTS OF APPEAL
THAT HAVE CONSIDERED THIS
HAVE SEEN FIT TO DISAGREE
ON.
>> WOULD YOU AGREE THAT,
THAT THE RECORDS THAT ARE
REQUESTS IN THIS DISCOVERY
ARE RECORDS THAT ON THE DAY
THAT THE VOTE WAS TAKEN FOR
THIS AMENDMENT WERE
PROTECTED BY STATUTE.
>> YES, TO --
>> SO THERE WAS A STATUTE
THAT THAT GAVE A STATUTORY
RIGHT TO NOT PRODUCE THESE
RECORDS PRIOR TO THE
EFFECTIVE DATE OF THIS
AMENDMENT?
>> JUSTICE WELLS, YES, THERE
WERE A SERIES OF STATUTES
THAT GAVE LIMITATIONS
UNLIMITED TO.
AND AS THIS COURT RECOGNIZED
AND AS JUSTICE PARIENTE
POINTED OUT PREVIOUSLY, THE
ENTIRE PURPOSE OF THE
AMENDMENT IS TO DEAL WITH
THOSE STATUTES AND TO OPEN
UP THE ACCESS TO THOSE
RECORDS, BUT YES, THAT'S THE
REASON THE AMENDMENT WAS
PASSED WAS TO GAIN ACCESS TO
PREVIOUSLY LIMITED ACCESS TO
CERTAIN RECORDS.
>> SO ISN'T A WAY TO LOOK AT
THIS IS THAT ON THE DATE OF
EFFECTIVENESS OF THIS
AMENDMENT, THAT THE, THOSE
STATTUTES WHICH GAVE THOSE
RIGHTS WERE NO LONGER
EFFECTIVE, CORRECT?
SURE.
>> IN DEALING WITH A STATUTE,
AS WE HAVE DEALT WITH
CONSTITUTIONALLY IN THE AIR
OKAY.
UNLESS THE STATUTE
SPECIFICALLY STATES THAT IS
A TAKING AWAY A VESTED RIGHT
RETROSPECTIVELY, THEN WE ARE
GOING TO GIVE IT PROSPECTIVE
APPLICATIONS, CORRECT?
>> WELL, IT DEPENDS ON WHAT
YOU MEAN BY SPECIFICALLY.
TO THE EXTENT THAT --
>> BECAUSE IT SAYS IN THE
STATUTE.
>> DOES NOT REQUIRE TO BE IN
THE STATUTE THE WORDS THIS
WILL APPLY RETROSPECTIVELY.
RATHER, THIS COURT HAS HELD
TIME AND TIME AGAIN THAT WE
NEED TO DETERMINE THE INTENT
OF THE CONSTITUTIONAL
AMENDMENT OR THE STATUTE AND
FIND OUT IF THE INTENT TO
APPLY RETROSPECTIVELY IS.
THERE I WOULD DISAGREE IF
YOU ARE SUGGESTING THAT THE
STATUTE, THE ONLY WAY IT CAN
BE APPLIED RETROSPECTIVELY
IS IF THE WORDS THIS WILL BE
APPLIED RETROSPECTIVELY --
THIS COURT HAS NOT HELD --
>> WE HAVE HELD THAT THERE
HAS TO BE A CLEAR STATEMENT.
INTENT.
>> ABSOLUTELY.
YES.
>> THAT IS REFLECTED WITHIN
EITHER THE CONSTITUTION OR
TO, IN ORDER FOR THAT TO
ELIMINATE RETROACTIVELY,
VESTED RIGHTS THAT PEOPLE
HAVE DEPENDED UPON IN MAKING
RECORDS, IN DOING WHATEVER
THEY DO IN FLORIDA LIFE.
>> WELL, I WOULD AGREE THAT
THERE IS A TWO-STEP PROCESS
THAT THIS COURT HAS
RECOGNIZED IN MANY OCCASIONS
GOING THROUGH THIS, AND
BEFORE YOU GET TO THE VESTED
RIGHTS ANALYSIS, YOU ARE
CORRECT IN THAT THIS COURT
HAS HELD TIME AND TIME AGAIN
THAT WE LOOK TO THE
AMENDMENT AND WE TRY TO
DISCERN THE INTENT TO FIND
OUT IF THERE IS A CLEAR
EXPRESSION OF INTENT THAT WE
APPLIED RETROACTIVELY.
>> WHY DON'T WE GO ABOUT
WHAT WE ARE TALKING ABOUT
INSTEAD OF NEBULOUS CONCEPTS
AND ANSWER HIS RESPONSE DO
WHETHER THIS IS
CONSTITUTIONAL.
>> IN DETERMINING THE INTENT
AND I WILL BACK UP JUST FOR
A MOMENT BECAUSE IT IS NOT
JUST THE FACE OF THIS.
AND THIS COURT HAS HELD THAT
COMMON SENSE PLAY AS ROLE IN
THIS, IT HAS HELD THAT THE
PURPOSE OF THE AMENDMENT
PLAYS A ROLE IN THIS, AND SO
BEYOND THE FACE OF THE
DOCUMENT, WE HAVE TO LOOK AT
THE PURPOSE WHICH IS STATED
IN THE AMENDMENT AND WE HAVE
TO APPLY COMMON SENSE.
THE PURPOSE OF THIS
AMENDMENT IS TO GRATE A
CONSTITUTIONAL RIGHT TO
ACCESS RECORDS THAT WERE
PREVIOUSLY RESTRICTED.
AND SO WHEN WE'RE LOOKING
ASTHIS, AND THAT'S THE
PURPOSE OF THIS AND THERE
WERE SEVERAL QUESTIONS
PREVIOUSLY ABOUT IT.
CAN IT POSSIBLY BE SUGGESTED
THAT THE VOTERS OF THE STATE
OF FLORIDA INTENDED TO VOTE
FOR AN AMENDMENT THAT SAYS
YOU'RE GOING TO HAVE ACCESS
TO RECORDS THAT WERE
PREVIOUSLY RESTRICTED AND
IT'S EFFECTIVE ON THE DAY
THAT IT BECOMES LAW AND ON
THAT DAY, ZERO RECORDS
EXIST.
THE REASONS FOR THIS ARE,
ARE REALLY THREE.
AND THAT'S THE FIRST ONE,
THE COMMON SENSE ASPECT OF
THIS, TO SUGGEST THAT THE
VOTERS INTENDED, NO, WE
DON'T WANT ANY RECORDS ON
THE DAY IT'S AFFECTED.
WE WANT TO WAIT AND WAIT FOR
THE RECORDS TO BE CREATICIDE
FRANKLY BELIED BY COMMON
SENSE.
TURNING TO THE TERMS OF THE
AMENDMENT ITSELF, THE USE OF
THE WORD ANY IS IN THERE,
AND AGAIN CBAERBSH RECORDS
TO A LAYMAN, I WOULD SUGGEST,
MEANS WHAT IT SAYS, ANY
RECORDS.
>> LET ME ASK YOU, THERE'S A
SECOND PRONG TO THIS, AND
REALLY IT'S A CONSTITUTIONAL
KIND OF ISSUE ABOUT, IT
TALKS ABOUT VESTED RIGHTS
BUT IT IS REALLY A DUE
PROCESS KIND OF ISSUE.
>> RIGHT.
>> SUPREME COURT, THE U.S.
SUPREME COURT IN A CASE
CALLED LANDSGRAFT HAS SAID
IN RETROACTIVELY.
COURT SHOULD BE
CONSIDERATIONS OF FAIR
NOTICE, REASONABLE RELIANCE,
AND SETTLED EXPECTATIONS.
NO NOW, DO YOU THINK THAT IN
CONSIDERING THOSE FACTORS,
THAT A CONSTITUTIONAL
AMENDMENT TO A -- SHOULD
APPLY TO CONDUCT AND ACTS
AND RECORDS THAT OCCURRED AT
A TIME WHEN EVERYBODY
INVOLVED UNDERSTOOD THAT
THEIR STATEMENTS THAT THESE
RECORDS, THAT EVERYTHING WAS
GOING TO GO CONFIDENTIAL AND
EVERYTHING THEY SAID WAS
BASED ON THAT PRESUMPTION.
>> BUT, YOUR HONOR, AGAIN, I
THINK THAT YOU ARE CORRECT,
AND THE QUESTION IS DUE
PROCESS, ET CETERA, AS FOUND
IN THAT U.S. SUPREME COURT
CASE, AND THERE WAS A
DISCUSSION EARLIER THAT
WE'RE NOT TAKING AWAY AND
SUDDENLY EXPOSING PEOPLE TO
LIABILITY, ET CETERA, BY
VIRTUE OF THIS, AND THAT
THERE WAS NO DISCUSSION THAT
SUDDENLY THAT WAS GOING TO
OCCUR HERE BUT THE CONCEPT
OF VESTED RIGHTS, WHILE,
AGAIN, YES, THESE RECORDS
WERE CREATED WITH THOSE
STATUTES IN PLACE, BUT THE
ANALYSIS THAT THIS COURT
MUST UNDERTAKE IS ARE THOSE
A MERE EXPECTATION OF THE
CONTINUEATION OF THAT OR CAN
THEY BE TAKEN AWAY BY THE
LEGISLATURE?
AND WHILE I WOULD AGREE THAT
WHILE THOSE RECORDS WERE
CREATED, CERTAIN STATUTES
WERE IN PLACE WHICH LIMITED
ACCESS, THAT IS NOT TO SAY
THAT ANYONE INVOLVED IN THAT
PROCESS HAD AN ABSOLUTE
RIGHT OR AN ABSOLUTE
GUARANTEE THAT THE
LEGISLATURE IN ITS WISDOM OR
THE VOTERS OF THE STATE OF
FLORIDA MIGHT AT SOME POINT
SEE FIT TO CHANGE THAT.
AND THAT IS NOT --
>> I CAN --
>> VESTED RIGHT.
>> I CAN ENVISION SEVERAL
DOCTORS IN THESE PEER REVIEW
COMMITTEES SAYING I MESSED
UP, I DID THE WRONG THING, I
CUT OFF THE WRONG LEG OR
WHATEVER, YOU KNOW, THOSE
THINGS, YOU KNOW, I JUST
WASN'T THINKING, OR, YOU
KNOW, MY FATHER HAD DIED
THAT WEEK, AND I JUST, I, I
WAS WRONG.
I WAS NEGLIGENT, AND THEY
FIND THAT.
BUT IF HE KNEW THAT SOMEBODY
LATER ON WAS GOING TO SUE
HIM FOR MALPRACTICE AND BE
ABLE TO GET THAT STATEMENT,
HE WOULDN'T HAVE MADE THAT
STATEMENT TO THE PEER REVIEW
COMMITTEE.
>> THAT PERHAPS IS TRUE,
YOUR HONOR, AND THAT IS
AGAIN, THE KIND OF PROBLEM
THAT EXISTS NOW IF
PROSPECTIVE APPLICATION IS
GIVEN TO THIS, THE CANDOR
PERHAPS WOULD NOT BE THERE,
BUT, YES, YOUR HONOR --
>> LET ME ASK YOU A
HYPOTHETICAL --
>> I'M SORRY.
>> WHAT IF THE VOTERS,
ENACTED AN AMENDMENT, THE
FLORIDA CONSTITUTION THAT
SAYS AS TO ALL CIVIL CASES,
WE ARE GOING TO ABROGATE THE
ATTORNEY-CLIENT PRIVILEGE.
>> I THINK, AGAIN, THAT IT
IS IMPORTANT FOR THE COURT
TO RECOGNIZE THAT THESE ARE
NOT PRIVILEGES AND ONE OF
THE REASONS AND IT DOESN'T
RISE TO THAT LEVEL AND IT IS
NOT -- IMPRACTING DUE
PROCESS TO THAT EXTENT THESE
RUR LIMITATIONS PLACED UPON
IT DUE TO DISCOVERY AND
OTHER.
WE FILED NOTICE TO
SUPPLEMENTAL AUTHORITY AND
THERE WERE WAYS THESE
RECORDS WERE AVAILABLE IN
FEDERAL CASE IN CERTAIN
CIRCUMSTANCES.
AND DUE PROCESS --
>> IS THERE ANYTHING THAT,
PREVENTS A TRIAL JUDGE,
BECAUSE IF IT'S IN
LITIGATION, FROM LIMITING
THE USE OF THE DOCUMENTS OR
THE LEGISLATURE FR PASS SAID
SOMETHING THAT SAYS THAT
THESE ARE AVAILABLE BUT THEY
CAN'T BE USED OR DISTRIBUTED
TO, TO OTHER -- IS THAT A
DIFFERENT ISSUE, FIRST OF
ALL?
>> WELL, IT WAS AN ISSUE
THAT WAS ADDRESSED BY THE
FIFTH DCA --
>> BECAUSE ALL THE TIME WE
GRANT PROTECTIVE ORDERS ON
THINGS.
>> SURE.
>> THIS DOESN'T AFFECT THE
PERSON WHO HAS DONE
ANYTHING.
THAT IS NOT THE NEGLIGENT
PERSON BUT THE PEOPLE
IMMUNITY FRAUGHT SUIT,.
>> CORRECT.
>> OR IT HASN'T CHANGED
ANYTHING THAT I CAN SEE
ABOUT THE ADMISSIBILITY OF
THIS INFORMATION INTO
EVIDENCE.
>> I WOULD NOT THINK SO, AND
AGAIN, --
>> SO IT STILL MAY BE
PRECLUDED FROM BEING
ADMISSIBLE IN EVIDENCE, AND
THE OTHER PART, AND I AM
CONCERNED ABOUT THIS I GUESS
IN THE FIRST DISTRICT CASE,
I DON'T SEE THAT IT DOES
ANYTHING TO SEE THAT
SOMEBODY WHO MIGHT HAVE
TESTIFIED AND THOUGHT IT WAS
CONFIDENTIAL WOULD BE
COMPELLED TO TESTIFY NAL
DEPOSITION.
NOW, IF, IS THAT AN ISSUE
THAT WE'RE SUPPOSED TO BE
LOOKING AT, BECAUSE I THINK
THAT IS A CONCERN, AND I
THINK THOSE ARE OTHER OF THE
IMUNITY FROM SUIT, THE
ADMISSIBILITY IN EVIDENCE,
THE PROTECTION, OTHER THAN
FOR THE USE OF, OF THE
PARTICULAR PERSON OR IN A
LAWSUIT, THAT THOSE ARE ALL
THINGS THAT ARE LEGITIMATE
CONCERNS THAT HAVE TO BE
ADDRESSED AND, AT SOME
POINT.
>> SURE.
>> DO YOU AGREE WITH THAT?
>> I DON'T DISAGREE THAT
THEY WOULD HAVE TO BE
ADDRESSED TO SOME EXTENT BUT
I WOULD ANSWER THE QUESTION
THIS WAY.
THE CERTIFIED QUESTION WITH
DISCOVERY AND THE PROCESS
AND THE FIFTH DCA'S OPINION
WAS ACCURATE I THINK START
FRAG THUM LARGE PICTURE IT
MAKES NO SENSE TO ALLOW
ACCESS TO THESE RECORDS
PRIOR TO LITIGATION BUT
SUDDENLY WHEN LITIGATION IS
SAYING SORRY YOU CAN'T
DISCOVER THESE OR USE THEM
IN SOME CONTEXT SO I THINK
THAT IS FAIRLY OBVIOUS.
THAT BEING SAID, ONCE THESE
RECORDS ARE RECEIVED BY
SOMEONE, THE SAME PROCEDURES
THAT WOULD APPLY TO ANY SORT
OF EVIDENCE IN THE CASE
REGARDING ADMISSIBILITY,
ET CETERA, WOULD BE IN PLACE
IN THE COURTS WOULD NEED TO
WIND THROUGH THOSE ISSUES
AND FOR US TO SIT HERE TODAY
AND SPECULATE AS TO WHAT
ISSUES MIGHT ARISE
CONCERNING ADMISSIBILITY, I
THINK IS BEYOND THE SCOPE
CLEARLY OF WHAT WE ARE HERE
TO DO TODAY --
>> IN A, IN A, IN A
LITIGATION CONTEXT, IS IT
ONLY THE PATIENT THAT'S ABLE
TO GET THIS INFORMATION?
OR IS IT SOME ANCILLARY
DEFENDANT THAT'S ABLE TO GET
THE INFORMATION?
OR?
CLEARLY, AND AGAIN, THAT
ISSUE WAS NOT PART OF THE
CERTIFIED QUESTION AND IT
WAS RAISED AND I'LL ANSWER
THAT AS BEST I CAN.
THE TERMS OF THE AMENDMENT
DICTATE WHO A PATIENT IS.
AND FURTHERMORE, THE TERMS
OF THE AMENDMENTS DO NOT
SUGGEST THAT ONCE THESE
RECORDS ARE PRODUCED TO A
CERTAIN PATIENT, THAT THERE
SOME SORT OF CONFIDENTIALITY
THAT ATTACHES TO THEM.
>> RIGHT.
AND SO THAT GOES BACK TO
JUSTICE CANTERO'S QUESTION,
DUE PROCESS ISSUE, IS THEY
CAN NOT ONLY BE USED ONCE
THEY'RE MADE, AND PUT IN THE
PUBLIC DOMAIN BY THE PUBLIC,
THEY CAN BE USED BY THE
DEFENDANT, BY OTHER
PLAINTIFF, THEY CAN BE USED,
THEY COULD TAKE IT DOWN TO
THE, TO THE DAYTONA BEACH
NEWS JOURNAL, COULD THEY
NOT.
>> I WOULD SUGGEST THAT, YES,
THESE ARE NOW PUBLIC RECORDS
IN THE SAME WAY THAT A
MEETING OF A PUBLIC BODY
THAT AFTER THE LITIGATION IS
OVER, THE MEETINGS BECOME
PUBLIC CERTAINLY THERE IS
ACCESS TO THESE AND NO
LIMITATION TO USE OF THESE
AND TO IMPOSE THE LITIGATION
USE IN THE CONTEXT FRANKLY
DOESN'T MAKE MUCH COMMON
SENSE IN THE SENSE THAT ONE
PARTY, THE PLAINTIFF HAS
ACCESS TO THESE RECORDS AND
COULD'VE GOTTEN THEM AND
SHARED THEM WITH WHOEVER WAS
CHOSEN NOW THE LITIGATION
HAS STARTED THEY CAN'T,
NOBODY ELSE IN THE
LITIGATION CAN SEE THESE
RECORDS AND I DON'T
UNDERSTAND REALLY THE
ARGUMENT THERE AND HOW THAT
IS LOGICAL.
CLEARLY THEY ARE THE ONES
ACCORDING TO THE AMENDMENT
TO ASK FOR THEM AND TO
RECEIVE THEM BUT TO LIMIT
THEM AT THAT POINT AND
IMPOSE SOME ORT OF
LIMITATION ON USE THAT THE
AMENDMENT DOESN'T
CONTEMPLATE IS CONTRARY TO
COMMON SENSE.
>> MR. KARLYLE IN THE NISHSAL
DISCUSSION YOUR COLLEAGUE
WAS DESCRIBING WHATEVER THE
WORD THAT INTEREST S VESTED
RIGHT, AN EXPECTATION,
WHATEVER THAT S. WOULD YOU
DESCRIBE IN THIS CASE YOUR
VIEW AS TO WHAT THAT
INTEREST IS AND WHY OR WHY
NOT IT DESERVES PROTECTION.
>> SURE.
I THINK -- 72 IS THAT NOT
THE KEY TO THE RETROACTIVE
ISSUE.
>> WELL, I THINK AGAIN THE
INTEREST TO USE PREVIOUSLY
SOUGHT TO FURTHER WERE FREE
FLOW OF DISCUSSION,
ET CETERA, DURING THE PERIOD
OF THE PROCESS.
AND I THINK IT IS IMPORTANT
TO RECOGNIZE.
>> I THINK YOU ARE TALKING
ABOUT THE INTEREST OF THE
PERSON OR THE INDIVIDUAL
INVOLVED OR ENTITIES.
JUST A NEBULOUS INTEREST.
THEY ARE TALKING ABOUT THE
INTEREST OF ENTITIES OR
INDIVIDUALS.
I THINK THAT'S THE
DISCUSSION.
>> ARE YOU ASKING ABOUT THE
INDIVIDUALS SEEKING THE
RECORDS OR --
>> NO THE INDIVIDUALS WHO
HAD BEEN PROTECTED, WHETHER
IT'S AN INSTITUTION, WHETHER
IT'S AN INDIVIDUAL, I THINK
THAT'S WHERE THIS DISCUSSION
GOES.
IS THE QUESTION OF WHATEVER,
HOW DO YOU WANT TO DESCRIBE
IT, WHETHER IT'S A VESTED
RIGHT TO THIS
CONFIDENTIALITY CONCEPT.
>> SURE.
>> THAT'S WHAT I'M RR ASKING
YOU TO DESCRIBE WITHOUT
USING LABELS.
>> I WOULD BE HAPPY TO.
IT IS NOT A VESTED RIGHT.
THE COURT HAS, AGAIN, AND
THERE ARE NUMEROUS CASES
THAT WE ARE TALKING ABOUT
HERE TALKING ABOUT BEING
MORE THAN A MERE EXPECTATION
OF, OF CONTINUE!!ING MATTERS.
THERE'S ALSO A BODY OF LAW
THAT TALKS ABOUT --
>> WHAT IS THE INTEREST?
CONFIDENTIALITY?
IS THAT THE INTEREST?
>> IT IS NOT A VESTED RIGHT.
>> WHATEVER THE INTEREST IS.
IS IT CONFIDENTIALITY OR IS
THE SOMETHING ELSE.
>> I'MSUMING IT WAS THE
CONFIDENTIALITY THAT, THEY
AGAIN, AT ONE POINT THEY
BELIEVED THESE WOULD NOT BE
DISCHROUSED HIRVE IT
WASINATE AN ABSOLUTES RIGHT
OR VESTED IN THAT.
>> THEY WOULD HAVE A RIGHT,
THAT'S WHY I SAID IMMUNITY,
THE RIGHT THAT THEY WOULDN'T
BE SUED.
WHEN THEY DID THIS.
IF WOOERN NOW DEALING WITH
SOMEBODY SAYING NOW THEY
COULD BE SUED.
>> I BELIEVE THAT'S THE
CASE.
>> NOW WE HAVE A WHOEL
DIFFERENT --
>> I TEND TO AGREE WITH YOU
BECAUSE THERE IS NOTHING IN
THE AMENDMENT --
>> IS THAT RIGHT?
>> I BELIEVE THAT IS THE
CASE.
THERE IS NOTHING IN THE
AMENDMENT THAT SPECIFICALLY
ADDRESS SAID REMOVING THE
IMMUNITY FROM STUTE SO SAT
-- SUIT SO THAT IS TIED UP
IN THIS WHOLE DUE PROCESS
SUIT.
>> LIEUSIS TRYING TO FIND
OUT WHAT IS, GIVE IT IN THE
LIGHT MOST FAVORABLE TO THE
HOSPITAL WHAT IS THE
INTEREST THAT IS BEING, THAT
WAS PROTECTED BEFORE?
THE INTEREST IN NOT BEING
KNOWN THAT YOU YOURSELF WAS
THE ONE THAT WERE TELLING ON
THE DOCTORS SAY IT WAS A CO,
IT WAS SOMEBODY THAT
OBSERVED IT BUT WAS WORRIED
ABOUT HIS OR HER JOB?
IS THAT, THE RIGHT OR
INTEREST?
>> AGAIN I THINK IT IS
IMPORTANT TO RECOGNIZE THAT
INCOURT HAS FOUND THAT THE
INTEREST WAS AND THE
INTEREST THAT THOSE
RESTRICTIONS WERE TO FURTHER
WAS THE FREE FLOW AND THE
CANDID DISCUSSIONS IN THE
PEER VIEW PROCESS.
IT WASN'T SOOSHIELD
NEGLIGENT DOLLARS FROM --
DOCTORS FROM THE
CONSEQUENCES OF THAR ACTIONS
AND I THINK THAT IS CRITICAL
FOR THIS COURT TO RECOGNIZE.
IT WAS AT THAT TIME, WE WANT
FREE FLOW OF INFORMATION IN
THE PEER REVIEW PROCESS AND
THE WAY TO ALLOW THAT TO
OCCUR IS BY PLACING CERTAIN
LIMITATIONS AND --
>> THE INTEREST THAT THE
LEGISLATURE WAS ATTEMPTING
TO PROTECT WAS THE INTEREST
IN, THAT THE STATE HAS, IN
THERE BEING QUALITY HEALTH
CARE.
SCPP THE LEGISLATE!!IVE
DECISION WAS, -- LEGISLATIVE
DECISION WAS, AND AFFECTED
THAT SAID THAT THE TRADEOFF
WAS THAT IF YOU HEALTH CARE
PROVIDER OR YOU HEALTH CARE
FACILITY WILL GO AHEAD AND
HAVE A FULL DISCLOSURE, THEN
THIS INFORMATION THAT YOU'RE
USING IN THAT IS GOING TO BE
PROTECTED FROM DISCLOSURE SO
THAT IT WILL BE FLANK AND
CANDID.
-- FRANK AND CANDID SO THAT
YOU CAN FULFILL THAT ROLE
AND SO THAT THESE PEOPLE CAN
RELY UPON THE FACT THAT
THEY'RE NOT GOING TO BE PUT
IN THE DAYTONA BEACH NEWS
JOURNAL FOR WHAT THEY SAY.
AND HURT THEIR PRACTICE.
>> YES, YOUR HONOR, I
UNDERSTAND.
AND I THINK THAT, AGAIN, I
AGREE WITH YOU.
AND I THINK WE CAN ALL AGREE
THAT THERE ARE TWO COMPETING
INTERESTS HERE.
THE INTERESTS OF THE FREE
FLOW OF INFORMATION IN THE
PEER REVIEW PROCESS VERSUSES
THE INTEREST OF THE CITIZENS
OF THE STATE OF FLORIDA TO
KNOW ABOUT ADVERSE MEDKLING
INCIDENTS.
THE QUESTION ABOUT WHICH ONE
OUTWAYS THE OTHER, WHICH ONE
DOMINATES WAS ANSWERED BY
THE VOTERS OF THE STATE OF
FLORIDA BY PASSING
THEAMENDMENT.
>> BUT NOT QUITE.
>> BUT IN ORDER TO,.
>> JUSTICE QUINCE GO AHEAD.
>> IN ORDER TO FILL THE
PURPOSE OF THIS AMENDMENT,
DO WE HAVE TO REALLY
ABROGATE THE, THE FREE FLOW
OF THIS INFORMATION?
IT SEEMS TO ME THAT YOU CAN
REALLY GET TO WHAT THE
CITIZENS WERE VOTING FOR,
WHICH IS TO FIND OUT ABOUT
WHAT DOCTORS HAVE DONE IN
THE PAST WITHOUT GETTING TO
HOW OTHER PEOPLE HAVE
DISCUSSED WHAT THE DOCTOR
MAY HAVE DONE IN THE PAST.
SO ISN'T THIS, ISN'T THAT
WHAT THIS AMENDMENT IS
LIMITED TO, IS THOSE
INCIDENTS AND NOT HOW OTHER
DOCTORS VIEWED IT OR HOW THE
HOSPITAL VIEWED IT IN TERMS
OF HOW THEY WERE GOING TO
CREDENTIAL HIM AND ALL OF
THOSE THINGS.
>> I TEND TO AGREE THAT
THERE IS SOME.
IT'S NOT OPENING THE DOORS
AND GETTING EVERYTHING.
THERE IS A LIMITATION THAT'S
INCLUDED IN THE AMENDMENT
REGARDING ISSUES REGARDING
ADVERSE MEDICAL INCIDENTS
BUT I ALSO THINK IT'S
IMPORTANT, YOU KNOW, TO
RECOGNIZE THERE WAS A NOTICE
OF SUPPLEMENTAL AUTHORITY
FILE ADCOUPLE DAYS GO
CONCERNING THE COMMITTEE
DISCUSSIONS ABOUT THE
STATUTE THAT WAS MULTIPLY
PASSED AND IN THERE, THERE'S
A ROEFRNS THAT KENTUCKY
ASTATE HAS OPEN RECORD OF
PEER REVIEW LAWS.
CERTAINLY, AGAIN, THE
QUESTION IS NOT, DOES THE
INTEREST OF KEEPING THESE
THINGS RESTRICTED OVERCOME
THE INTEREST OF THE PUBLIC
BECAUSE THAT'S BEEN DECIDED.
AND THE QUESTION NOW BECOMES,
OR, OR WE'RE TRYING TO
FIGURE OUT, WHAT IS THE
RIGHT TO ACCESS?
AND AND IT'S BEEN CLEARLY
EXPRESSED AND SO I THINK TO,
TO SUGGEST THAT THE SKY IS
FALLING, PEER REVIEW WILL BE
DESTROYED AND DOCTORED WILL
NOT BE CANDID, NUMBER ONE,
WOULD SUGGEST THEY ARE NOT
WILLING TO LIVE UP TO THEIR
DUTIES UNDER THE STATUTES TO
ENGAGE IN THE PRAUSSING, BUT
NUMBER TWO, SO, IF, THERE IS
A CHANGE IN THE WAY THESE
THINGS ARE APPROACHED THAT'S
WHAT THE VOTERS INTENDED AND
THAT'S WHY THIS AMENDMENT
BECAME LAW.
>> LET ME MAKE SURE I
UNDERSTAND IT.
YOU SEEM TO BE -- YOU ARE
TALKING ABOUT INTEREST.
A BROAD GENERIC INTEREST OF
THE STATE OF FLORIDA IN A
PROCESS.
THAT'S WHAT YOU HAVE JUST
DESCRIBED RATHER THAN INTRS
OF ANY ENTITY OR INDIVIDUALS
IN THE LAW AS IT EXISTS AND
THAT'S WHERE I SEE A MAJOR
DISTINCTION HERE THAT WE ARE
TALKING ABOUT.
THAT'S WHAT I THOUGHT WENT
TO THE HEART OF A
RETROACTIVE ANALYSIS.
>> AND AGAIN, THE QUESTION
BEING THAT BECAUSE THERE WAS
AN EXPECTATION THAT THESE
WOULD NOT BECOME PUBLIC DOES
THAT RISE TAVESTED RIGHT
WHICH IS THE ISSUE HERE.
AND, AND FRANKLY, YOUR HONOR,
IF YOU LOOK AT THE BODY OF
CASE LAW WHERE VESTED RIGHTS
HAVE BEEN FOUND, IT'S
SITUATION WHERES A JUDGMENT
IS IN SOMEONE'S HANDS, AND
THE LAW CHANGES WHERE
SOMEHOW THAT JUDGMENT WILL
BE TAKEN AWAY.
THAT IS A VESTED RIGHT.
THE EXPECTATION, AND I THINK
WE CAN ALL AGREE, THE
STATUTES HAVE BEEN AMENDED
BY THE LEGISLATURE NUMEROUS
TIMES OVER THE YEARS.
THEY, THEY HAVE THE RIGHT
AND THE LEGISLATURE
CERTAINLY COULD'VE SAID, YOU
KNOW WHAT, WE WANT TO HAVE
OPEN RECORDS REGARDING PEER
REVIEW.
THIS COULD'VE HAPPENED.
>> WE ARE TALKING ABOUT
RETROACTIVITY NOW.
FOR THE FUTURE, THEY CAN SAY
WE ARE GOING TO HAVE OPEN
EVERYTHING, THEY CAN SAY
THERE'S NO ATTORNEY-CLIENT
PRIVILEGE FOR THE FUTURE.
THE QUESTION S DOES THAT
RELATE TO THE PAST, AND I
GET BACK TO WHAT THE SUPREME
COURT SAID, YOUR ARGUING
THAT THE, THE VOTEVERS
ALREADY DETERMINED WHICH
SIDE THEY'RE ON ON THAT IN
THE BALANCING PROCESS, BUT
WE ALSO HAVE TO CONSIDER THE
CONSTITUTIONAL OVERLAY AND
THE SUPREME COURT SAYS THAT
OVERLAY HAS TO CONSIDER
SETTLED EXPECTATIONS, FAIR
NOTICE, AND REASONABLE
RELIANCE.
AND I DON'T SEE HOW WE CAN
SAY THAT PEOPLE DID NOT
REASONABLY RELY ON THE FACT
THAT THIS PEER REVIEW
PROCESS WAS ALL CONTAINED IN
A CONFIDENTIAL ARENA.
>> WELL, YOUR HONOR, AGAIN,
I WOULD -- MY TIME IS JUST
ABOUT UP.
I WOULD ONLY ANSWER BY
SAYING, YES, THAT THERE IS
THE ISSUE THAT PEOPLE DID
HAVE THE STATUTES IN PLACE
AT THAT TIME.
BUT GIVEN THE ANALYSIS THAT
THIS COURT HAS GAN THROUGH
ON NUMEROUS OCCASIONS IT
DOESN'T IMPLICATE DUE
PROCESS IN THE WAY A TRUE
PRIVILEGE WOULD AND
FURTHERMORE IT DOES NOT RISE
TO THE LEVEL BEING BEYOND A
EXPECTATION THAT THEY RELY
TOND AND IT IS NOT A VESTED
RIGHT.
>> LET ME SEE IF I CAN
CAPTURE IT.
THERE IS NO VESTED INTEREST
THAT FLOWS TO ANY PERSON OR
ANY ENTITY OR ANYPLACE OTHER
THAN JUST THE OVERALL STATE
INTEREST BASED ON THESE
STATUTES?
IS THAT THE SUMMARY?
>> I BELIEVE THAT'S THE
CASE.
THANK YOU, YOUR HONOR.
>> YOUR HONOR, AS I THINK A
CONSENSUS HAS EMERGED AMONG
EVERYBODY.
THE JUSTICES AND THE
PARTIES.
THAT THE LEGISLATURE CAN
REASONABLY IMPLEMENT A
CONSTITUTIONAL AMENDMENT.
I DON'T THINK THAT ARE
DEBATABLE AND A VERY GOOD
QUESTION WAS ASKED.
WHY THE WHOLESALE
INVALIDATION OF SECTION
381028 BY TWO DISTRICT
COURTS OF APPEAL ON THE
THIRD ONE ACTUALLY NOW?
WHEN, WHY NOT GO, AND DRILL
DOWN TO WHAT PARTICULAR
PROVISIONS THERE ARE?
AND I THINK THE ANSWER IS
THAT YOU EXACTLY HAVE TO DO
THAT.
AND MR. EQUELLS PROVIDED THE
BASIS.
YOU ASKED HIM FOR AN
EXAMPLE, AND HE GAVE ONE.
THE EXAMPLE HE GAVE IS A
PARAPHRASE OF SUBSECTION 7 A
OF SECTION 328.018.
IN OTHER WORDS -- 28.
THAT IS, THE LEGISLATURE
REASONABLY CONSIDERED THIS.
JUST TWO DAYS AGO, THE FIRST
DISTRICT COURT OF APPEAL, IN
AVANT VILLA v. BRIDER SAID
WE'RE GOING TO LOOK AT
INDIVIDUAL PROVISIONS AND
THERE'S NO CONFLICT WITH
ANYTHING WITH REGARD TO THE
PROVISION THEY HAD IN FRONT
OF THEM AND SUSTAINED A
PROVISION.
DESPITE A PANEL WHICH HAD
STRUCK THE WHOLE STATUTE,
OUT OF THAT VERY STATUTE.
SO WHAT DOES THIS -- AND OF
COURSE, THE ORAL COUNSEL FOR
THE ACADEMY OF FLORIDA TRIAL
LAWYERS TESTIFIED IN THE
MATERIALS YOU HAVE IN FRONT
OF US.
BUT, OF COURSE, HIS WORDS,
THE LEGISLATURE CAN
SUPPLEMENTAL, CLARIFY, AND
EXPRESS LEGISLATIVE INTENT,
AND THE COURTS WILL HAVE TO
GIVE IT, QUOTE, GREAT
DEFERENCE, ACCORDING TO
MR. JEFF.
SO WHAT ARE WE REALLY
TALKING ABOUT?
EVEN IN THE NEW ERA THAT YOU
HEARD MENTIONED, QUALITY
HEALTH CARE IN FLORIDA
DEPENDS ON OPEN AND FREE
COMMUNICATION IN THE PEER
REVIEW, THE CREDENTIALING,
THE QUALITY ASSURANCE, AND
THE RISK MANAGEMENT
PROCESSES.
>> IS THAT THE INTEREST WE
ARE TALKING ABOUT THAT --
>> NO, IT IS THE INDIVIDUAL.
I'M GLAD YOU CLARIFIED.
AMENDMENT 7 STANDS AT CROSS
PURPOSES.
WITH THAT PEER REVIEW AND
QUALITY ASSURANCE PROCESS,
AND NEEDS HARMONIZATION.
IT DOESN'T NEED TO BE A THIS
OR A THAT AS YOU JUST HEARD
T. NEEDS HARMONIZATION.
WHO IS BEST EQUIPPED TO DO
THAT?
A TRIAL COURT IN A DISCOVERY
DISPUTE ERN IN A MEDICAL
MALPRACTICE CASE WITH
VIRTUALLY NO RECORD AS WE
HAVE HERE?
OR THE FLORIDA LEGISLATURE
IN THE CAULDRON OF ITS
LEGISLATIVE PROCESS WITH
DELIBERATION, DEBATE, AND
INPUT FROM EVERYBODY WITH
ENOUGH INFORMATION AND THE
BACKGROUND OF WHAT THEY ARE
TRYING TO ACCOMPLISH WITH
OPEN COMMUNICATIONS?
>> YOU ARE NOT ARGUING THAT
THE LEGISLATURE CAN
DETERMINE WHETHER THE
AMENDMENT IS RETROACTIVE?
>> NO, YOUR HONOR, WHAT I'M
SAYING IS SECTION 381.028
WAS A VALID --
>> CAN YOU IMPLEMENT --
>> REASONABLY IMPLEMENT.
>> AND TO THE EXTENT THAT
YOU CONCLUDE THAT IT IS
INCONSISTENT.
THAT IS THE TEST THAT WE
AGREE APPLIED.
SEVER THAT PROVISION BUT
DON'T THROW OUT THE WHOLE
STATUTE.
YOU HAVE TO.
AND WE URGE YOU TO FOSTER,
TO FIND A WAY TO MAINTAIN
THAT WHICH, YOU SO OFTEN
SAID IN THE LEGISLATURE HAD
FOR 20 YEARS WHICH IS THAT
WE HAVE TO HAVE QUALITY CARE
THROUGH THE PEER REVIEW
PROCESS, RISK MANAGEMENT,
CREDENTIALING, QUALITY
ASSURANCE WITH OPEN
COMMUNICATIONS.
THANK YOU FOR YOUR TIME.
>> YOU'RE SAYING THE
LEGISLATURE --
>> THE LEGISLATURE --
>> EXTENSIVE REGULATORY
SCHEME HERE AS LONG AS IT
DOESN'T CONFLICT WITH THE
PROVISIONS OF THIS
AMENDMENT.
>> I THINK WE AGREE WITH
THAT.
I DON'T KNOW WHY THE TWO
DISTRICTS COURTS FOUND IT
NECESSARY TO REACH BEYOND
THAT AND INVALIDATE AN
ENTIRE STATUTORY SCHEME.
THANK YOU, YOUR HONORS, FOR
YOUR ATTENTION.
>> THE COURT WILL TAKE THE
CASE UNDER ADVISEMENT.