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October 2004

Florida Proposed Amendment No. 7

Ok, here comes another one. I know this is becoming like all election all the time, but hey, it is just a few days away. A few more days of this and it will be over… maybe. Anyway, next is this one:



Current Florida law restricts information available to patients related to investigations of adverse medical incidents, such as medical malpractice. This amendment would give patients the right to review, upon request, records of health care facilities’ or providers’ adverse medical incidents, including those which could cause injury or death. Provides that patients’ identities should not be disclosed.

The direct financial impact this amendment will have on state and local government revenues and expenditures cannot be determined, but is expected to be minimal. State agencies will incur some additional costs to comply with public records requirements of the amendment, but these costs will be generally offset by fees charged to the persons requesting the information.

Once again though, we’ll need the real full text, not just the summary:


1) Statement and Purpose:
The Legislature has enacted provisions relating to a patients’ bill of rights and responsibilities, including provisions relating to information about practitioners’ qualifications, treatment and financial aspects of patient care. The Legislature has, however, restricted public access to information concerning a particular health care provider’s or facility’s investigations, incidents or history of acts, neglects, or defaults that have injured patients or had the potential to injure patients. This information may be important to a patient. The purpose of this amendment is to create a constitutional right for a patient or potential patient to know and have access to records of a health care facility’s or provider’s adverse medical incidents, including medical malpractice and other acts which have caused or have the potential to cause injury or death. This right to know is to be balanced against an individual patient’s rights to privacy and dignity, so that the information available relates to the practitioner or facility as opposed to individuals who may have been or are patients.

2) Amendment of Florida Constitution:
Art. X, Fla. Const., is amended by inserting the following new section at the end thereof, to read:
“Section 22. Patients’ Right to Know About Adverse Medical Incidents.
“(a) In addition to any other similar rights provided herein or by general law, 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.
“(b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.
“(c) For purposes of this section, the following terms have the following meanings:
“(1) The phrases “health care facility” and “health care provider” have the meaning given in general law related to a patient’s rights and responsibilities.
“(2) The term “patient” means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.
“(3) The phrase “adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.
“(4) The phrase “have access to any records” means, in addition to any other procedure for producing such records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records which have been made publicly available by publication or on the Internet may be “provided” by reference to the location at which the records are publicly available.”

3) Effective Date and Severability: This amendment shall be effective on the date it is approved by the electorate. If any portion of this measure is held invalid for any reason, the remaining portion of this measure, to the fullest extent possible, shall be severed from the void portion and given the fullest possible force and application.

OK. So looking at this, this is exactly what I said I WOULD support when I was talking about Amendment 8. Rather than automatically forbidding doctors to practice with a certain number of black marks on their record, just make sure that the record is publically available and people choosing doctors (and hospitals hiring doctors for ERs and such) can make an informed decision.

So… if this was a proposed new law in the legislature, I might very well support it.

But the problem is that this is not a proposed normal law. This is a proposed amendment to the Florida Constitution. Now, the “Statement and Purpose” says this is to “create a constitutional right for a patient or potential patient to know”.

I said that having things like a “Bill of Rights” in a Constitution (or amendments thereto) is appropriate… but what is appropriate there is definitions of governmental restrictions… in other words places where government is prohibited to act because certain rights are reserved to individuals. In other words, what are called “negative rights”. Things that the government is prohibited from interfering in. “Positive rights”, which are actually not rights at all, but rather entitlements… things which

Now, personally I am very dubious about the idea of positive rights in any context. I’m not sure there actually is any such thing. The idea that an individual should be protected from many forms of abusive government action seems obvious to me. The notion that people somehow should be “entitled” to specific things bestowed upon them by the government does not.

Now, that does not mean that I believe that under no circumstances should government every bestow things on people. In some cases they should, and regulations in many areas while to be avoided if possible, is sometimes necessary or desireable. But those things should be matters of policy, and I do not think they elevate to the level of a “right”. And thus I think those sorts of things should be decided OUTSIDE of a constitution.

So, in this case I actually SUPPORT the policy goals of this amendment. I think it would be a good thing if something like this was enacted as a LAW. However I think it is inappropriate for something like this to be included in the state constitution. So…

My vote is: NO

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