As a Miami Beach lawyer who sues careless hospitals I was pleased to see that our Florida Supreme Court finally struck back at the ultra doctor-friendly Florida Legislature in the case of West Florida Regional Medical Center v. Linda See when it ruled that information obtainable pursuant to Florida’s Constitutional Amendment 7 is not protected from discovery.
In 2003, Lynda See complained of pain during a consult with her primary care doctor. He then ordered her to have an ultrasound which revealed a tiny amount of “sludge” in her gallbladder. She was then referred to a surgeon who recommended a laparoscopic cholecystosomy or removal of the gallbladder.
The surgery was performed at West Florida Hospital and during the surgery, the common bile duct was severed. A common mistake that I am very familiar with as Florida botched gallbladder surgery malpractice lawyer.
When the lacerated bile duct was discovered, a consult was made by another doctor that the patient needed two kinds of emergency procedures, one called a Roux-en-Y hepaticojejunostomy and the other an open laparotomy. Both procedures were performed without Ms. See’s knowledge or consent. She contended that the emergency surgeries were also done negligently, causing additional damage. In addition, she claimed that they doctors failed to monitor her liver postoperatively causing premature liver damage.
Based upon the botched initial, follow up and post-op malpractice, Ms. See was forced to have a another round of surgery in 2005 and had to have a liver transplant. She ultimately filed a Florida gallbladder surgery malpractice case against all the doctors and West Florida Regional Medical Center for both vicarious liability of the surgeons and direct negligence for granting medical staff privileges to those doctors.
Once she filed suit, she requested that West Florida Hospital produce all documents and regulations and rules regarding the surgical credentialing for laparoscopic cholecystosomies, Roux-en-Y hepaticojejunostomy and other bile duct injury reports and all document and evidence pertaining to the training and credentialing of the doctors who performed the procedure on her. In addition, she requested all adverse incident reports that involved the hospital and the doctors in question in regards to laparoscopic cholecystosomies, Roux-en-Y hepaticojejunostomy and other bile duct injury reports. Florida law defines an adverse incident as medical negligence, intentional misconduct and any other act, neglect or default of a health care facility or provider that causes injury or harm to a patient.
Of course, West Florida Hospital objected to these requests and moved for a protective order. They claimed that, while the requests were made pursuant to Florida’s Constitutional Amendment 7, the Amendment itself is an unconstitutional violation of the United States Constitution’s Supremacy Clause. In addition, the hospital claimed that the information was neither discoverable nor admissible for any purpose in any civil action. They also contended that since her surgeries occurred back in 2003 and 2005, they predated Amendment 7 anyway. Lastly, they argued that Florida credentialing and peer review statutes §766.101(5) and 395.0191(8) prevented the disclosure.
Ms. See’s case made its way from the trial court, to the First District Court of Appeal to the Florida Supreme Court. The Florida Supreme Court ruled that Ms. See is entitled to receive a copy of a blank application for medical staff privileges and that Florida’s Statute §381.0287(b)1 allows impermissible attempts to limit the disclosures guaranteed by the Florida Constitution’s Amendment 7. The hospital also was ordered to produce any evidence of the surgeon’s training for Roux-en-Y hepaticojejunostomies, but not the credentialing files for matters other than adverse incidents.
As a Florida injured patient advocate, I strongly feel until Florida’s doctors and hospitals are forced to provide open access to the decisions made to give and maintain staff privileges patients care and safety will continue to suffer.
