After Florida voters overwhelmingly passed Amendment 7, Florida’s Legislature tried to tear its heart out by passing Florida Statute Section 381.028 at the behest of their paymasters, the health industry. The Statute explicitly contradicted Amendment 7 by making the information about adverse medical incidents an industry secret again. Under the Statute, there was no way for citizens to access the health care information guaranteed them by the Constitution under Amendment 7.
At its heart, Amendment 7 ensures health care consumers access to important information about “adverse medical incidents” so that they can make informed choices about where to go for their health care. Freedom to choose is meaningless without the necessary knowledge. Transparency provides a new commodity and power to health care consumers.
Shortly after the Legislature thwarted Amendment 7, as has happened with myriad recent unconstitutional actions taken by Florida’s legislature (see, Redistricting, abortion restrictions, the Gun Gag law, etc.), the Florida Supreme Court overturned 381.028 as unconstitutional. See, Notami below.
In Charles, the Supreme Court again (for the last time perhaps) saved Amendment 7 from industry sponsored legislative attack. This time from the Federal Government. Because of the industry attacks from the moment Amendment 7 was passed in 2004, we have never lived in an environment where Amendment 7 was working as intended – even though thirteen years have passed.
“The test to determine whether a constitutional provision is self-executing is whether it provides a sufficient rule by which the right or purpose it gives or is intended to accomplish may be determined or protected without legislative enactment. See Gray, 125 So. 2d at 851; NAACP, Inc., 876 So. 2d at 639. “If the provision lays down a sufficient rule, it speaks for the entire people and is self-executing.” Gray, 125 So. 2d at 851; NAACP, Inc., 876 So. 2d at 639. “The fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing.” Gray, 125 So. 2d at 851; NAACP, Inc., 876 So. 2d at 639…The language in Amendment 7 is much more specific (than a comparable rule). It defines, in detail, what records are discoverable, who is entitled to discovery, and states it is effective on the date it is approved by the voters. If the broadly worded constitutional amendment in Gray was determined to be self-executing, the much more specific language in Amendment 7 easily passes that test.” Notami Florida Hospital v. Bowen, 927 So. 2d 139 (Fla. 2006).
So how does Amendment 7 work in this new environment where there are no remaining obstructions to complete industry compliance? Are there any hidden obstructions still waiting to be launched?
- You can access general info online at kept by Florida’s Agency for Health Care Administration at http://ahca.myflorida.com/SCHS/RiskMgtPubSafety/RiskManagement.shtml;
- You cannot access details online – written demand was required under the statute overturned by the Legislature and there are no signs that health care providers are going to voluntarily comply with other types of requests;
- You do not have to have a lawyer, but … experience litigating complex medical malpractice cases is critical to fashioning a request that will produce the information you need rather than a obtuse and avoidant boilerplate response or objection.
