Jodi Benjamin v. Tandem Healthcare, Inc.

SC07-2423

FLORIDA SUPREME COURT
WEDNESDAY, SEPTEMBER 10, 2008

>> PLEASE RISE.
HEAR YE, HEAR YE, HEAR YE.
THE SUPREME COURT OF FLORIDA IS
NOW IN SESSION.
ALL WHO HAVE CAUSE TO PLEA,
DRAW NEAR, GIVE ATTENTION, AND
YOU SHALL BE HEARD.
GOD SAVE THESE UNITED STATES,
THIS GREAT STATE OF FLORIDA,
AND THIS HONORABLE COURT.
>> GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING.
FIRST CASE ON THE DOCKET THIS
MORNING IS BENJAMIN v. TANDEM
HEALTHCARE.
ARE THE PARTIES READY TO
PROCEED?
YOU MAY PROCEED.
>> MAY IT PLEASE THE COURT.
MY NAME IS
REBECCA MERCIER-VARGAS.
I AM HERE ON BEHALF OF THE
PLAINTIFF MRS.^BENJAMIN, AND
WITH ME TODAY IS HER TRIAL
ATTORNEY JEFFREY FENSTER.
THE VOTERS ENACTED AMENDMENT 7
TO CREATE A BROAD RIGHT TO
ACCESS PEER REVIEW RECORDS THAT
HAD PREVIOUSLY BEEN SHROUDED BY
PRIVILEGES.
THE FIRST AND FOURTH DISTRICTS
EVISCERATED THE INTENT OF THE
AMENDMENT BY NARROWLY
CONSTRUING IT TO INCLUDE
NURSING HOMES AND NURSES.
>> WHERE DID THE FOURTH
DISTRICT GO WRONG IN ITS
ANALYSIS HERE?
WHAT YOU'RE CONTENDING?
>> THAT IS CORRECT.
>> ABOUT THE VERY POINTEDLY
WAY YOU'RE MAKING YOUR CASE,
WHERE DID THEY GO WRONG?
>> YES, YOUR HONOR.
I'D LIKE TO START WITH THE
PLAIN LANGUAGE OF THE
AMENDMENT.
THE AMENDMENT PROVIDES THAT THE
TERMS HEALTH CARE PROVIDER AND
HEALTH CARE FACILITY HAVE THE
MEANING GIVEN IN GENERAL LAW
RELATED TO PATIENTS' RIGHTS AND
RESPONSIBILITIES.
AND THE FIRST AND FOURTH
DISTRICTS WENT WRONG BY
NARROWLY CONSTRUING THAT
PROVISION AS ONLY --
>> DIDN'T THE FOURTH DISTRICT
POINT TO A STATUTORY SOURCE FOR
AN EXPLANATION?
>> YOU'RE RIGHT, YOUR HONOR.
WHAT THEY DID WAS THEY
CONCLUDED THAT IT ONLY INTENDED
TO APPLY TO ONE SPECIFIC
STATUTE WHICH WAS SECTION
381.026, WHICH IS A LOT TITLED
-- IT'S RELATED TO A PATIENTS'
RIGHTS AND RESPONSIBILITIES;
HOWEVER, THERE ARE OTHER
STATUTES IN THE GENERAL LAW
THAT RELATE TO PATIENT'S RIGHTS
AND RESPONSIBILITIES.
>> WHICH ONE WOULD YOU --
>> -- DEAL WITH PROVISION IN
THE STATEMENT OF PURPOSE OF THE
PROPOSED AMENDMENT THAT REFERS
TO STATUTORY PROVISIONS
RELATING TO PATIENTS' BILL OF
RIGHTS ON -- THAT SEEMS TO BE
AN UNMISTAKABLE REFERENCE TO
THE STATUTORY PROVISION --
>> YOUR HONOR, I WOULD AGREE
THAT IT DOES REFER TO THAT
STATUTE, BUT IT'S NOT ONLY
REFERRING TO THAT STATUTE.
IT'S REFERRING ALSO, THE
AMENDMENT IS USING THE TERMS
GENERAL LAW WHICH MEANS TO
INCORPORATE THE ENTIRE BODY OF
GENERAL LAWS THAT RELATE TO
PATIENTS' LAWS AND
RESPONSIBILITIES, AND THERE'S A
PARALLEL STATUTE IN THE NURSING
HOME ACT WHICH CREATES VERY
SIMILAR RIGHTS TO PEOPLE WHO
HAVE BEEN ADMITTED TO NURSING
HOMES SPECIFICALLY TO RECEIVE
PROFESSIONAL NURSING CARE --
>> WHAT IS THAT STATUTE CALLED?
>> YOUR HONOR, THAT'S CALLED
RESIDENT'S RIGHT.
>> NOW, WE ARE -- IT MAY BE,
AND THERE ARE QUESTIONS AS TO
OBVIOUSLY PEOPLE THAT PREPARED
THE FINANCIAL IMPACT STATEMENT
THOUGHT THAT THIS WAS --
NURSING HOMES AND THE FIFTH
DISTRICT THOUGHT -- BUT LET'S
GET BACK TO THE LANGUAGE THAT
THE DRAFTERS CHOSE TO USE
SPECIFICALLY SAID HEALTH CARE
PROVIDER SHALL BE AS DEFINED IN
GENERAL LAW RELATING TO
PATIENTS' RIGHTS AND
RESPONSIBILITIES.
NOW THEY COULD'VE SAID HEALTH
CARE PROVIDER IS ANY -- THEY
COULD'VE LISTED IT BECAUSE THIS
WAS NOT IN THE BALLOT SUMMARY
AND THEY COULD SAID NURSING
HOME INCLUDES EVERYBODY WHO
PROVIDES HEALTH CARE, BUT THEY
DIDN'T, AND I AM -- AND THE
FACT THAT ALTHOUGH MAYBE
PATIENTS AND RESIDENTS ISN'T,
YOU KNOW, THEY'RE
INTERCHANGEABLE SOMETIMES BUT
JUST THE FACT THAT THE NURSING
HOME BILL OF RIGHTS REFERS TO
RESIDENTS VERSUS PATIENTS
SOMEWHAT PERSUADES ME THAT THE
LANGUAGE TENDED TO NARROW WHO
THIS PRIVILEGE WOULD APPLY TO
RATHER -- I MEAN, THE
EXEMPTIONS RATHER THAN SAY ANY
HEALTH CARE PROVIDER, SO IF YOU
COULD ANSWER HOW DO WE GET
AROUND THE FACT THAT 400
ACTUALLY DOES TALK ABOUT A
RESIDENT'S BILL OF RIGHTS.
IT DOESN'T SAY PATIENTS' RIGHTS
AND RESPONSIBILITIES.
>> YES, YOUR HONOR.
THERE IS A DIFFERENT
TERMINOLOGY IN THE NURSING HOME
STATUTE, AND IT'S IMPORTANT TO
EXAMINE THE REASON FOR THAT.
THE NURSING HOME STATUTE WAS
ENACTED TO PROVIDE ADDITIONAL
REMEDIES BECAUSE THERE WAS
RAMPANT ELDER ABUSE IN NURSING
HOLES, AND SO THERE, THEY
CREATED A PRIVATE CAUSE OF
ACTION TO PROVIDE BASIC AND
MINIMUM STANDARDS OF CARE TO
PROTECT THE HEALTH OF PEOPLE IN
NURSING HOMES.
AND SO THE USE OF THE DIFFERENT
TERMS WASN'T INTENDED TO
RESTRICT THE RIGHTS AVAILABLE
TO NURSING HOME RESIDENTS IT
WAS REALLY PROVIDED -- INTENDED
TO PROVIDE A CUMULATIVE REMEDY.
AND IF YOU LOOK AT WHY --
>> BUT I THINK THAT STILL
REQUIRES A JUMP BECAUSE YOU
HAVE THIS, THE LANGUAGE THAT
JUSTICE ANSTEAD POINTED TO IN
THE FIRST AND THE FOURTH REALLY
HAVE RELIED ON, WHICH SEEMS TO
BE A REFERENCE, IF WE WERE
DOING A STATUTORY CONSTRUCTION.
AS DOING THE DEFINITION IN
381.026.
AND I AGREE IN ONE WAY THE
VOTERS PROBABLY WOULD'VE SAID
GET RID OF ALL PRIVILEGES IF IT
WERE PUT BEFORE THEM, BUT IT
DOES APPEAR THAT THE INTENT
WAS, YOU KNOW, TO NARROWLY LOOK
AT HOSPITALS AND DOCTORS AND
PROBABLY -- IT PROBABLY DOES
EXCLUDE, YOU KNOW, DENTISTS AND
ALL THOSE OTHERS THAT THOUGHT
IT INCLUDED THEM, SO IT IS A
NARROW DEFINITION OF HEALTH
CARE PROVIDERS.
>> WELL, THE DEFINITION --
WELL, AND YOU HAVE TO READ THE
ENTIRE CONSTITUTIONAL AMENDMENT
AS A WHOLE AND YOU ALSO NEED TO
LOOK AT NOT JUST THE
DEFINITIONS OF HEALTH CARE
PROVIDER BUT THE DEFINITION OF
ADVERSE INCIDENT, ADVERSE
MEDICAL INCIDENTS WHICH IS
REALLY MUCH BROADER THAN
MEDICAL MALPRACTICE CLAIMS IT'S
NOT JUST LIMITED TO DOCTORS AND
HOSPITALS.
THE DEFINITION OF PATIENT IS
EXTREMELY BROAD.
THE DEFINITION OF PATIENT IS
SOMEONE WHO HAS, IS RECEIVING
HEALTH CARE OR TREATMENT AND
BASICALLY EVEN AN PROSPECTIVE
PATIENT, SOMEONE WHO'S THINKING
ABOUT PATIENT.
AND THOSE, THOSE DEFINITIONS
ALSO ENCOMPASS SOMEONE MOO
WHO'VE BEEN ADMITTED TO A
NURSING HOME TO GET NURSING
CARE BECAUSE THE REASON YOU
ENTER A NURSING HOME IS TO GET
A PROFESSIONAL STANDARD OF CARE
BY DEFINITION THAT'S WHAT A
NURSING HOME DOES.
IT PROVIDES PROFESSIONAL --
>> YOU ARE REALLY ARGUING THE
GOOD POLICY THAT SHOULD ALSO BE
THERE.
I, YOU KNOW, I MAY NOT DISAGREE
WITH YOU.
THE ISSUE REALLY IS HOW YOU
READ THAT INTO THE
CONSTITUTIONAL AMENDMENT
WITHOUT BROADENING IT BEYOND
WHAT THE ACTUAL LANGUAGE SAYS.
>> WELL, YOUR HONOR, I THINK
THAT THE FOCUS FOR THIS COURT
WHEN YOU'RE CONSTRUING A
CONSTITUTIONAL PROVISION IS TO
KEEP IN MIND THE INTENT OF THE
VOTERS TO KEEP A, TO CREATE A
BROADS RIGHT OF ACCESS.
AND WHEN YOU LOOK AT THE BALLOT
SUMMARY, WHICH IS WHAT THE
VOTERS ACTUALLY SOUGHT BEFORE
THEM, THE BALLOT SUMMARY SAID
WE'RE CREATING A RIGHT TO
ACCESS RECORDS, INCLUDING
MEDICAL MALPRACTICE, THAT WERE
NOT PREVIOUSLY AVAILABLE BY LAW
AND A REASONABLE PERSON WHO'S
SITTING IN THE VOTERS' BOOTH
TRYING TO DECIDE WHETHER TO
ENACT THIS AMENDMENT WOULD
ASSUME THAT IF THEY HAVE A
RELATIVE WHO'S LOOKING FOR
NURSING HOME CARE BECAUSE THEY
NEED A NURSE, THAT THAT WOULD
INCLUDE THEM AND THAT THEY
WOULD BE ABLE --
>> I BELIEVE JUSTICE LEWIS HAD
A, A QUESTION.
>> SHE COVERED IT.
>> SHE COVERED IT.
>> MY CONCERN IS THAT IT IS
SO VERY SPECIFIC WITH REGARD TO
THE PATIENTS' RIGHTS AND
RESPONSIBILITIES, THOSE KINDS
OF THINGS, AND THAT AND WE OPEN
THIS UP, IT SEEMS THAT YOU ARE
GOING TO BE FISHING ALL OVER
THE PLACE AND TRY AND CAPTURE
THE DEFINITION OF WHAT A HEALTH
CARE FACILITY MAY BE UNDER
THESE CIRCUMSTANCES.
AND THAT'S WHAT'S TROUBLING ME
ON IT.
I MEAN, I DON'T KNOW THAT THEY
ABSOLUTELY THOUGHT IT HAD TO BE
JUST THIS ONE STATUTE BUT
THAT'S WHAT IT IS NOW IN OUR
STATUTORY SCHEME.
>> WELL, BUT I THINK IF YOU
JUST TURN TO THE STATUTORY
CONSTRUCTION PRINCIPLES, THEY
USE THE TERMS GENERAL LAW
RELATING TO A PATIENTS' RIGHTS
AND RESPONSIBILITIES
RESPONSIBILITY.
IF THEY HAD WANTED TO
INCORPORATE A SPECIFIC STATUTE,
THEY COULD'VE DONE THAT.
IF YOU JUST TURN TO ARTICLE 10
AND YOU LOOK TO THE PREGNANT
PIG AMENDMENT, WHICH IS JUST A
FEW, A FEW PROVISIONS ABOVE IT,
THEY INCORPORATE A SPECIFIC
STATUTE BY USING A SPECIFIC
STATUTE NUMBER.
>> HOW ABOUT JUSTICE LEWIS --
THE IMPLICATION OF THE
QUESTION, THAT IS THAT ON THE
DAY'S MARKET, IMAGINATION OF
BUSINESS PEOPLE OR OTHERS ARE
OPERATING IN THIS FIELD, THERE
ARE DAY CARE CENTERS, FOR
PEOPLE, STILL OLD-FASHIONED,
QUOTE REST HOMES, YOU KNOW FOR
RETIREES, WE NOW HAVE ALL OF
OUR HERE IN FLORIDA, OUR STATE
UNIVERSITIES PROVIDING CARE ALL
THE WAY FROM INDEPENDENT LIVING
TO VIRTUALLY HOSPITAL STATUS.
SO TALKING -- IF WE GO IN A
BROAD DIRECTION HERE, WOULDN'T
WE REALLY BE NOW POTENTIALLY
EXTENDING MEANING OF THIS TO
CLEARLY CATEGORIES OF CARE
THAT WERE NOT INTENDED TO BE
COVERED?
>> WELL, YOUR HONOR,
RESPECTFULLY, NO.
NURSING HOMES ARE HISTORICALLY
DEFINED AS HEALTH CARE
PROVIDERS, AND MANY, MANY
FLORIDA STATUTES --
>> WHY ISN'T THERE THE
PROTECTION THAT IF YOU DO HAVE
THE VERY SPECIFIC MEDICAL CARE,
YOU KNOW, WITHIN ANY FACILITY,
THAT THEN, THAT IT WOULD BE
SUBJECT TO THE AMENDMENT
PROTECTION?
-- SO YOU HAVE THAT PROTECTION
WHEREAS THE BROADER THINGS SUCH
AS INSTITUTIONS ALL BEING
COVERED, THAT'S A MUCH MORE
DRAMATIC STEP ISN'T IT, TO GO
FROM THE SPECIFIC LANGUAGE
THAT'S BEEN CITED AND DISCUSSED
THAT THE FOURTH DISTRICT RELIED
ON TO A BROAD COVERING HOLDING
THESE INSTITUTIONS BROADLY.
>> WELL, YOUR HONOR, I DON'T
THINK CONSTRUING A NURSING HOME
AS BEING A HEALTH CARE FACILITY
IS BY ANY STRETCH OF, A VERY
BROAD READING OF THIS STATUTE.
I THINK THAT'S SOMETHING THAT'S
WELL WITHIN, WELL WITHIN THE
INTENT OF THE VOTERS --
>> WHAT ABOUT THE RETIREMENT
CENTERS, THE DAY CARE CENTERS,
AND REST HOMES.
>> WELL, I THINK THOSE WOULD
NOT BE COVERED BECAUSE YOU
WOULD STILL HAVE TO BE
CONSIDERED A HEALTH CARE
PROVIDER UNDER GENERAL, AND I
THINK YOU'D HAVE TO BE DEFINED
IN GENERAL LAW RELATING TO
PATIENTS' RIGHTS.
>> THE TROUBLE IT SEEMS TO ME
WITH THAT IS THAT THIS COURT
AND INTEGRATED, WHAT WAS THE
NAME OF THE --
>> -- SIR.
>> DREW A VERY MUCH OF A
DISTINCTION HERE BETWEEN
ACTIONS UNDER 400.022.
AND ACTIONS AGAINST HEALTH CARE
PROVIDERS.
ON A VERY IMPORTANT MATTER AND
THAT'S WHERE YOU HAD TO GO
THROUGH PRE-SUIT SCREENING.
AND SO THE WHOLE THREAT -- AND
THE WHOLE THRUST WE KNOW,
ALL OF US HEARD ARGUMENT THE
FIRST TIME WHEN WE WERE DEALING
WITH THE INITIATIVE THAT
CAME THROUGH THIS COURT THAT
WHAT THE THRUST OF THIS WAS, IT
WAS MEDICAL MALPRACTICE.
AND, I MEAN, THAT WAS, THAT'S
REALITY.
AND SO TO STRETCH IT OVER AND
OBLITERATE THE DISTINCTION THAT
WAS DRAWN IN INTEGRATED -- IN
THE INTEGRATED CASE SEEMS TO ME
TO BE A REAL STRETCH.
>> WELL, YOUR HONOR, I WOULD, I
WOULD AGREE WITH YOU THAT THE
THRUST OF THE AMENDMENT WAS
TARGETING MEDICAL MALPRACTICE
CLAIMS HOWEVER IT WASN'T
INTENDED TO BE LIMITED.
IF YOU LOOK AT THE DEFINITION
OF ADVERSE MEDICAL INCIDENTS IN
THE AMENDMENT, IT'S BROADER
THAN MEDICAL MALPRACTICE
CLAIMS.
IT INCLUDES --
>> LET ME ASK.
HOW DO YOU FEEL ABOUT --
[INAUDIBLE]
LITIGATION -- FINANCIAL IMPACT
-- PHYSICALLY --
[INAUDIBLE]
NURSING HOMES WERE NOT COVERED
BY THE AMENDMENT
[INAUDIBLE]
>> THAT'S TRUE, YOUR HONOR.
THE SPONSORS OF THE AMENDMENT
DID TAKE THE POSITION THAT
NURSING HOMES WERE NOT COVERED,
AND THEY ASKED THIS COURT TO
STRIKE THE FINANCIAL
INFORMATION -- OR THE FINANCIAL
IMPACT STATEMENT.
HOWEVER, THIS COURT LET THE
FINANCIAL IMPACT STATEMENT GO
ON THE BALLOT AND THE REAL
QUESTION BEFORE THIS COURT IS
TO DETERMINE --
>> MINIMAL IMPACT -- ACTUALLY
WENT ON THE BALLOT --
[INAUDIBLE]
>> THAT'S CORRECT BUT THERE WAS
FINANCIAL INFORMATION STATEMENT
THAT THE LONGER SUMMARY WHICH
IS INCLUDED IN OUR REPLY BRIEF
APPENDIX WHICH EXPLAINED THAT
THE AGENCY FOR HEALTH CARE
ADMINISTRATION, WHICH IS THE
AGENCY THAT WAS GOING TO BE
CHARGED WITH IMPLEMENTING THIS
AMENDMENT, INTERPRETED IT AS
APPLYING TO NURSING HOMES.
IN FACT, THEY THOUGHT THEY WERE
GOING TO NEED OVER $400,000 TO
RESPOND TO REQUEST.
AND FOUR ADDITIONAL STAFF
PEOPLE WHICH IS FOUR TIMES MORE
STAFF AND RESOURCES THAN THEY
WERE GOING TO NEED TO RESPOND
TO REQUESTS IN HOSPITALS.
AND --
>> LET ME ASK YOU THIS.
ARE NURSING HOMES DIFFERENT
FROM SAY A REHAB CENTER?
WE KNOW THAT MORE OFTEN AFTER
YOU HAVE BEEN IN THE HOSPITAL,
YOU MAY NEED TO GO TO A REHAB
CENTER.
AND AT THOSE CENTERS, USUALLY
YOU HAVE DOCTORS WHO COME TO
CHECK ON YOU, NURSES WHO ARE
THERE, BUT DO WE HAVE --, AND I
DON'T KNOW, ARE REHAB CENTERS
EVEN INCLUDED UNDER THIS
DEFINITION OF A MEDICAL
FACILITY?
DO YOU THINK SO?
>> YOUR HONOR, I'D HAVE TO TAKE
A LOOK AT HOW, THEY'RE DEFINED
IN THE STATUTE.
I'D HAVE TO --, BECAUSE, YOU
KNOW, THERE ARE A LOT OF
DIFFERENT TYPES OF FACILITIES,
AND THEY HAVE DIFFERENT
STATUTES GOVERNING EACH TYPE OF
FACILITY.
BUT IF THEY ARE PROVIDING, IF
THEY ARE PROVIDING MEDICAL
CARE, THEN I THINK THAT THEY
WOULD BE COVERED BY THIS.
IF THEY HAVE A PEER REVIEW
STATUTE --
>> BUT GENERALLY AT A NURSING
HOME --
>> THAT'S RIGHT.
>> YOU DON'T REALLY HAVE -- DO
YOU HAVE MEDICAL DOCTORS WHO
COME IN ON A REGULAR BASIS TO
CHECK ON THE PATIENTS OR IS IT
REALLY MORE A CARE YOU CAN'T
REALLY TAKE CARE OF YOURSELF
WHILE RIGHT AFTER YOU HAVE BEEN
TO THE HOSPITAL.
YOU CAN'T REALLY TAKE CARE OF
YOURSELF.
SO YOU'RE REALLY IN THERE MORE
FOR SOME MAINTENANCE AS OPPOSED
TO MEDICAL PURPOSES.
>> WELL, IN A NURSING HOME IT'S
REAL AN INTERESTING HYBRID AND
GOING BACK TO JUSTICE WELLS'
QUESTION, THE REASON THAT THEY
ENACTED -- THERE WAS A LONG, A
BIG TENSION, YOU KNOW, DID ALL
THE LIMITATIONS ON MEDICAL
MALPRACTICE ACTS LIKE THE
PRE-SUIT NOTICE, CAPS ON
DAMAGES, ARBITRATION
PROVISIONS, SHOULD THOSE APPLY
TO NURSING HOME ACTIONS BECAUSE
REALLY THE NURSING HOME ACTIONS
ARE REALLY BASED, BASED ON
VIOLATIONS OF NURSING CARE.
THE NURSING HOME ACT MAKES
CLEAR THAT NURSING HOMES ARE
VICARIOUSLY LIABLE FOR NURSES
FAILURE TO MAINTAIN A
PROFESSIONAL STANDARD OF CARE
GOVERNING NURSES.
HOWEVER, NURSING HOME ACTIONS
ARE NOT ACTIONS FOR MEDICAL
MALPRACTICE AND SO IT'S REALLY
WAS INTENDED TO PROVIDE AN
ADDITIONAL REMEDY BECAUSE
EXISTING MEDICAL MALPRACTICE,
WRONGFUL DEATH, AND NEGLIGENCE
ACTIONS WERE NOT SUFFICIENTLY
PROTECTING FRAIL AND ELDERLY
RESIDENTS SO THE NURSING HOME
ACT WAS NOT INTENDED TO TAKE
AWAY YOU KNOW, RIGHTS BY USING
DIFFERENT TERMINOLOGY.
IT WAS INTENDED TO ACTUALLY
ENHANCE THE RIGHTS AVAILABLE
AND TO HELP RESIDENTS REALLY
PROTECT THEMSELVES.
>> WOULD YOU ANSWER JUSTICE
QUINCE'S QUESTION.
DO NURSING HOMES AND SOME OF US
ARE FAMILIAR WITH THE NURSING
HOME LITIGATION BUT DID MEDICAL
DOCTORS COME TO SEE, YOU KNOW,
THIS IS SOMEBODY THAT WAS
APPARENTLY ACUTELY ILL --
>> YES, YOUR HONOR, THE NURSING
HOME RESIDENTS HAVE THE RIGHT
TO THEIR OWN PERSONAL
PHYSICIAN, AND BUT, WHILE
THEY'RE IN THE NURSING HOME SO
THE STATUTORY CAUSE OF ACTION
IN THE NURSING HOME ACT SAYS
THAT THE NURSING HOME IS NOT
LIABLE FOR MEDICAL MALPRACTICE
OF A TREATING PHYSICIAN EXCEPT
FOR THE MALPRACTICE OF THE, THE
DIRECTOR OF THE NURSING HOME OR
A MEDICAL DIRECTOR.
BUT THEY ARE --
>> THEY DON'T HAVE DOCTORS ON
STAFF --
>> THAT'S CORRECT.
THAT'S CORRECT.
>> YOUR HONOR, YOU CAN -- YOUR
OWN PERSONAL PHYSICIAN AND WHO
YOU WOULD LIKE TO TREAT YOU,
HOWEVER, THE NURSING HOME IS
LIABLE FOR A PROFESSIONAL
STANDARD OF CARE IF THE NURSE
COMMITS MALPRACTICE, AND THAT'S
THE STATUTORY CAUSE OF ACTION
CHAPTER WHICH IS 400.0233
SUBSECTIONS 4 AND 5 WHICH IS
CLEAR THAT YOU RECEIVE NURSING
CARE IN A NURSING HOME AND BY
DEFINITION THAT IS WHY YOU ARE
IN A NURSING HOME.
IF YOU TURN TO THE DEFINITIONAL
PORTION.
>> THE ALLEGATION IN THIS CASE
WAS WHAT HAPPENED WAS A FAILURE
OF THE NURSING HOME STAFF IN
THE PROVIDING OF THE MEAL.
>> WELL, NO, YOUR HONOR, IT'S
MORE OF A MEDICAL INCIDENT.
WHAT YOU HAVE IS A NURSE'S
FAILURE TO FOLLOW DOCTOR'S
ORDERS.
THERE WERE DOCTOR'S ORDERS TO
GIVE A SPECIAL DIET, TO HELP
HER WHILE SHE WAS EATING, AND
ALSO THERE'S ALLEGATIONS IN THE
COMPLAINT THAT ONCE, ONCE
SHE CHOKED, SHE WAS
NEGLIGENTLY RESUSCITATED.
THEY DID A BAD JOB OF --
>> COVERED UNDER 400.022.
>> RIGHT THE CAUSE OF ACTION,
THERE IS A STATUTORY CAUSE OF
ACTION UNDER 400, ALSO
NEGLIGENCE ACTION AND WRONGFUL
DEATH ACTION.
>> WHAT ARE YOU ACTUALLY
SEEKING IN THIS CASE THAT YOU
THINK YOU CAN GET UNDER THE
CONSTITUTIONAL AMENDMENT THAT
YOU CAN GET NOT UNDER REGULAR
AMENDMENT.
>> THE SMOKING GUN, YOUR HONOR.
THERE ARE TWO DOCUMENTS THEY
ARE OBJECTING TO.
ONE IS THE STATEMENT OF THE
NURSE WHOSE ACTIONS ARE AT
ISSUE IN THIS CASE, AND THE
SECOND IS ON THE PEER REVIEW
PRIVILEGE LOG IT JUST SAYS
ADVERSE INCIDENT REPORT AND
IT'S UNCLEAR EXACTLY WHAT THAT
DOCUMENT IS.
BUT WE WOULD CERTAINLY LIKE TO
READ IT.
>> SO THERE ARE PEER-REVIEWED
REPORTS MADE FOR NURSES WHO ARE
HIRED BY THESE NURSING HOME --
HOMES --
>> WELL, ONE JUST ON THE
PRIVILEGE LAW WHICH IS IN THE
APPENDIX IN THE FOURTH DISTRICT
IT JUST SAYS STATEMENT OF NURSE
AND IT'S THE NURSE WHOSE
ACTIONS ARE AT ISSUE IN THIS
COMPLAINT AND IT'S NOT CLEAR
EXACTLY IF IT WAS A STATEMENT
TO THE PEER REVIEW OR AN
INCIDENT REPORT AND THERE'S
DIFFERENT STATUTORY -- SECTION
400.147 WHICH IS THE STATUTORY
PRIVILEGE AT ISSUE HERE IF IT
HAS THE STATEMENT AT THE TIME
THAT YOU MAKE TO YOUR, THAT YOU
ARE REQUIRED TO REPORT TO YOUR
RISK MANAGER.
THAT'S SOMETHING THAT CAN BE
OBTAINED THROUGH DISCOVERY ON A
SHOWING OF WORK PRODUCT
PRIVILEGE.
BUT WE'RE NOT CLEAR EXACTLY
WHAT IT IS.
THERE HASN'T BEEN AN IN-CAMERA
INSPECTION AND YOUR HONOR, I
WOULD LIKE TO --
>> DON'T SIT DOWN.
I WANT YOU TO ASSUME THAT THIS
COURT WROTE AN OPINION THAT IT
IS LIMITED TO THE PARTICULAR,
NOT REFERENCE TO THE STATUTE
BUT THOSE COVERED BY THAT
PARTICULAR STATUTORY SECTION.
WHAT WOULD BE THE ADVERSE
IMPACT?
WHAT THINGS WOULD BE EXCLUDED
FROM THIS CONSTITUTIONAL
PROVISION THAT YOU WOULD LOOK
AT AND SAY, MY GOSH, THAT'S
JUST ABSOLUTELY CRAZY.
IS THERE SOMETHING THAT WOULD
BE ELIMINATED OTHER THAN THE
NURSING HOME FACILITY?
>> WELL, YOUR HONOR, FOR
EXAMPLE, DENTISTS WERE THE, IT
WAS THE DENTIST THAT ACTUALLY
BROUGHT THE CHALLENGE TO
PUTTING THIS AMENDMENT ON THE
BALLOT DENTISTS THOUGHT THEY
WERE COVERED AND THEY FELT
STRONGLY ENOUGH THEY BROUGHT A
PETITION ASKING THIS COURT TO
STRIKE AMENDMENT 7 FROM THE
BALLOT BUT DENTISTS WOULD NOT
BE COVERED IF THIS COURT WERE
TO --,.
>> ACTUALLY IF WE FOLLOW 39846
AS I READ IT, I THOUGHT ONLY
PHYSICIANS AND HOSPITALS ARE
COVERED.
>> THAT'S RIGHT.
IT WOULD BE VERY --
>> SO IT WAS VERY --
>> IT WOULD BE VERY LIMITED AND
THE AMENDMENT COULD'VE JUST
SAID DOCTORS AND HOSPITALS.
THAT WOULD'VE BEEN A LOT EASIER
BUT THEY DID NOT DO.
YOUR HONOR, THANK YOU.
>> YOU HAVE USED MOST OF YOUR
TIME.
WE WILL GIVE YOU AN EXTRA
MINUTE OR SO.
>> THANK YOU.
>> MAY IT PLEASE THE COURT,
GOOD MORNING, YOUR HONORS.
MY NAME IS THOMAS VALDEZ, AND I
HAVE THE PRIVILEGE OF
REPRESENTING THE RESPONDENT IN
THIS MATTER, --
>> WOULD YOU JUST ASK THE LAST
QUESTION BECAUSE I KNOW I HAVE
STATUTE SOMEWHERE BUT IF WE
INTERPRET IT AS SPECIFICALLY
ONLY REFERRING TO HEALTH CARE
PROVIDERS UNDER 381.026, WHAT
IS -- COULD YOU JUST -- DO YOU
HAVE THAT HANDY?
WHO THEN IS THE ONLY -- WHO'S
COVERED BY IT AND WHO'S THEN
EXCLUDED?
OR JUST WHO'VE COVERED.
>> YOUR HONOR, IF, IF THE COURT
LOOKS AT THE EXPRESS LANGUAGE
OF THE AMENDMENT, AND
INCORPORATES SECTION 381.026,
THE FLORIDA PATIENTS' BILL OF
RIGHTS AND RESPONSIBILITIES,
SPECIFICALLY THE DEFINITIONS OF
THE TERMS HEALTH CARE FACILITY
AND PROVIDER CONTAINED IN THAT
STATUTE, THE AMENDMENT WILL BE
LIMITED AS IT WAS MEANT TO BE
TO DOCTORS AND HOSPITALS.
>> SO THE DENTISTS AND THE --
WHO ELSE WOULD ARE SOMETIMES IN
THE STATUTES REFERRED TO AS
HEALTH CARE PROVIDERS?
>> WELL, YOUR HONOR, THE, WHAT
THEY, WHAT THE STATUTE 381.026
REFERS TO AS DOCTORS, IT
SPECIFICALLY DEFINES DOCTORS
LICENSED UNDER CHAPTER 458.
THOSE ARE MEDICAL DOCTORS,
DOCTORS LICENSED UNDER CHAPTER
459, WHICH ARE DOCTORS OF
OSTEOPATHIC MEDICINE, AND
DOCTORS, AND PODIATRISTS,
DOCTORS OF PODIATRIC MEDICINE.
>> SO IF I WAS TO GO TO THE
HOSPITAL BECAUSE I HAVE REAL
SERIOUS DENTAL PROBLEMS AND A
DENTIST IS ACTUALLY COMES AND,
AND GIVES ME SOME KIND OF
SERVICE, THEN THAT DENTIST
WOULD BE EXCLUDED FROM -- AND
SOMETHING GOES WRONG, AND I
FILE SOME KIND OF ACTION, THAT
DENTIST WOULD BE EXCLUDED FROM
ME GETTING ADVERSE REPORTS
ABOUT HIM?
>>> YOUR HONOR, I'M NOT SURE
THAT DENTIST WOULD SEE YOU
UNLESS THEY WERE A MEDICAL
DOCTOR IN THE CONTEXT OF THE
HOSPITAL BUT I THINK THE ONLY
WAY THAT YOU COULD GET TO
INFORMATION REGARDING THE
DENTIST UNDER THE AMENDMENT
UNDER THE AMENDMENT, IT WAS
WRITTEN IF YOU WERE TO SUE THE
HOSPITAL AND ASK THEM IF THEY
HAD ANY ADVERSE MEDICAL
INCIDENT REPORT DOCUMENTATION.
DENTISTS ARE CLEARLY EXCLUDED
FROM THIS.
>> CAN WE GO BACK --
>> DO YOU THINK THAT PEOPLE,
WHEN THEY READ THIS AMENDMENT
ACTUALLY BELIEVED THAT THEY
WERE GOING TO BE LIMITED TO
JUST MEDICAL DOCTORS AND THAT
ALL THESE OTHER AND ALL THESE
PEOPLE WHO PROVIDE THEM WHAT
THEY CONSIDER TO BE MEDICAL
CARE WOULD BE EXCLUDED?
>> I ABSOLUTELY BELIEVE THAT,
YOUR HONOR.
I DON'T THINK THERE IS ANY, ANY
OTHER REASONABLE
INTERPRETATION.
I MEAN, CERTAINLY THERE MAY
HAVE BEEN SOME VOTERS IN THE
STATE WHO WALKED INTO THE
BALLOT COMPLETELY UNINFORMED
BUT AS THIS COURTS, I THINK
THEY WERE THE EXCEPTION, NOT
THE RULE.
THIS COURT HAS NOTED IN, IN
OTHER OPINIONS THAT IT MUST
PRESUME THAT WE HAVE AN
INTELLIGENT AND INFORMED
ELECTORATE IN THIS STATE, AND I
THINK THAT WE DO.
PEOPLE WHO WALKED INTO THE
VOTING BOOTH TO VOTE ON
AMENDMENT 7 WHAT THEY HAD
BEFORE THEM WAS A STEADY STREAM
OF INFORMATION ON THE AMENDMENT
WHICH WAS PROVIDED BY THE
PROPONENTS OF THE AMENDMENT,
FLORIDIANS FOR PATIENT
PROTECTION WHICH WAS A GROUP
THAT WAS SET UP BY THE ACADEMY
OF FLORIDA TRIAL LAWYERS AND
THE STEADY DRUM BEAT THAT THEY
HEARD FROM THE PROPONENTS OF
THE AMENDMENTS WAS THAT IT WAS
GOING TO BE APPLY TO DOCTORS
AND HOSPITALS.
>> WOULD YOU ADDRESS THE
QUESTION THAT JUSTICE QUINCE
WAS TALKING ABOUT BEFORE?
AND THAT IS, ARE THERE
CATEGORIES OF, OF AFTER CARE,
FOR EXAMPLE.
THE REHAB TYPE FACILITY
THAT A HOSPITAL PATIENT, YOU
AGREE THE HOSPITAL'S GOT TO
GIVE THOSE RECORDS.
>> YES, SIR.
>> BUT THE PATIENT'S NOT READY
TO GO HOME SO THEY ARE THEN
SENT TO A, QUOTE,
REHABILITATION AND THE
PROBABLY MORE INTENSE THAN JUST
A CUSTODIAL TYPE THING.
IS THAT TYPE OF FACILITY
COVERED UNDER THIS OR NO IT
WOULD STRICTLY BE A HOSPITAL?
>> THAT WOULD NOT BE COVERED.
>> NOT BE COVERED.
>> IF IT IS A SKILLED NURSING
FACILITY BECAUSE THERE ARE
DIFFERENT LEVELS OF SKILLED
NURSING, CUSTODIAL CARE OR
HIGHER LEVEL, IF IT'S A SKILLED
NURSING FACILITY THAT'S
LICENSED UNDER CHAPTER 400,
WHICH IS MENTIONED NOWHERE IN
THE AMENDMENT, IS IN THE
STATEMENT AND PURPOSE, AND IN
ANY OF THE MATERIALS
DISSEMINATED TO THE PUBLIC
PRIOR TO THE PASSAGE OF THE
AMENDMENT, THEN IT WOULD NOT BE
INCLUDED.
>> LET ME ASK YOU SOME
EXCEPTIONS, BECAUSE I THINK
THIS IS ACTUALLY, -- QUESTIONS
BECAUSE I THINK THIS IS
ACTUALLY -- I THINK THIS IS A
DIFFICULT CASE, AND PART OF THE
REASON IS THAT, YOU KNOW, I TRY
TO THINK BACK TO OUR OWN ORAL
ARGUMENT, AND I KNOW THAT WE
SAID, WELL, THE TRIAL LAWYERS
WANTED THIS AMENDMENT BECAUSE
THERE WAS THE PARALLEL
AMENDMENT THAT WAS GOING TO
RESTRICT ATTORNEYS FEES, NOT
NURSING HOME CASES, BUT IN
MEDICAL MALPRACTICE THEY SAID
WELL THAT'S WHERE THEY WERE
PROBABLY GOING BUT THEN IT'S
DRAFTED AND IT'S NOT DRAFTED
WITH REFERENCE TO A STATUTE
WHICH WOULD'VE BEEN SO EASY.
IT'S DEFINED -- HEALTH CARE
PROVIDERS ARE DEFINED IN
381.026, SO ANY VOTER WHO WANTS
TO SEE WELL WHAT IS THAT COULD
GO AND LOOK AT THAT STATUTE.
OR YOU COULD'VE SAID HEALTH
CARE PROVIDER IS A HOSPITAL OR
A DOCTOR, HOW EASY IS THAT.
TO SAY OR THEY COULD NAME THE
PRIVILEGES AND NAME THE TWO
STATUTES THAT IT WAS GOING TO.
TO THE PROBLEM WITH THE AVERAGE
VOTER, WHO DO WE THINK AN
AVERAGE VOTER BY SAYING HEALTH
CARE PROVIDER IS DEFINED AS BY
GENERAL LAW RELATING TO
PATIENTS' RIGHTS AND
RESPONSIBILITIES.
THINKS THAT, OH, THAT MUST BE
381.026, WHICH IS THE BILL OF
RIGHTS.
THAT -- THAT TO ME IS WHERE I
HAVE DIFFICULTY WITH YOUR
ARGUMENT ABOUT, YOU KNOW, YOU
MIGHT BE RIGHT THAT THE
PROPONENTS THOUGHT THAT IT WAS
NARROW.
OR WANTED IT TO -- OR DIDN'T --
JUST WANTED TO PUT THIS ON THE
BALLOT BUT IN READING IT YOU
REALLY HAVE TO SAY OH, WELL
THEY MUST'VE REFERENCED THAT
WHEN THEY COULD'VE EASILY
REFERENCED A STATUTE OUR JUST
THE TWO CATEGORIES YOU COVERED.
NOW WHERE DOES THAT FIT IN IN
TERMS OF STATUTORY
CONSTRUCTION.
YOU SAY IT'S CLEAR IT MUST'VE
BEEN 381.026 BUT HOW IS IT
CLEAR?
>> YOUR HONOR, YOU HAVE TWO
QUESTIONS WITHIN THAT QUESTION.
ONE, WOULD IT HAVE BEEN EASIER
IF THE FLORIDIANS WITH PATIENT
PROTECTION WITH THE ASSISTANCE
OF THE FLORIDA TRIAL LAWYERS
ASSOCIATION HAD JUST CITED THE
STATUTE, YEAH, THAT WOULD'VE
BEEN --
>> NOT EASIER.
IT WOULD'VE BEEN -- YOU ARE
SAYING WE LOOK AT WHAT THE
VOTERS THOUGHT THEY WERE VOTING
ON.
IT WOULD'VE MADE IT CLEAR TO
EVERYBODY.
>> WELL, AND, AND THAT WAS THE,
THAT WAS THE SECOND PART OF
YOUR QUESTION THAT I WANTED TO
GET TO.
WHAT WOULD A REASONABLE VOTER
THINK?
THE PETITIONER HAS SAID THAT
THE INTENT OF THE DRAFTERS OF
THIS AMENDMENT, THE PROPONENTS
OF THIS AMENDMENT IS IRRELEVANT
AND DOESN'T MATTER.
THE DECISIONS OF THIS COURT SAY
DIFFERENT.
THE DECISIONS OF THIS COURT SAY
THAT YOU LOOK AT THE INTENT OF
THE DRAFTERS AND THE VOTERS.
YOU GIVE MORE DEFERENCE OR
LITTLE BIT MORE WEIGHT TO THE
INTENTION -- TO INTENT OF THE
VOTERS.
NOW WHAT WAS THE INTENT OF THE
MAJORITY OF VOTERS IN THIS
CASE?
WELL, AFTER LOOKING AT THE, THE
VAST AMOUNT OF MATERIALS THAT
WERE DISSEMINATED ABOUT
AMENDMENT SEVEN ON STATE WEB
SITES, DIVISION OF ELECTIONS
WEB SITES LIKE THE VOLUSIA
COUNTY WEB SITE WOULD SAY THIS
IS AN AMENDMENT DEALING WITH
DOCTORS AND HOSPITALS LOOKING
AT --
>> I GUESS YOU HAVEN'T REALLY
-- YOU AGREE THAT IT COULD BE
PUT VERY SIMPLY SAID DOCTORS
AND HOSPITALS SAID 381.026.
>> I THINK THE DRAFTERS
COULD'VE SAID THAT.
>> I'M SAYING THEN IT WOULD'VE
BEEN UNAMBIGUOUS, IT WOULD'VE
BEEN CLEAR.
>> I DON'T THINK IT IS
UNAMBIGUOUS.
>> IT WOULD'VE BEEN MORE CLEAR
THAN YOU THINK IT IS BY THIS
REFERENCE TO SOMETHING, AND YOU
THINK VOTERS WOULD KNOW THAT
HAD TO BE 381.026.
>> WELL, I THINK THE RESPONSE
IS TWOFOLD, YOUR HONOR.
ONE, THERE IS A VERY CLEAR
REFERENCE TO THE PATIENTS' BILL
OF RIGHTS AND RESPONSIBILITY BY
TITLE, AND, AND AND THAT'S WHAT
GOVERNS.
BUT, YOU KNOW, IF WE WERE, IF
WE'RE LOOKING AT THE VOTERS AND
SAYING WELL WHAT DID THE VOTERS
THINK ABOUT THIS, AGAIN, THERE
WERE NUMEROUS NEWSPAPER
ARTICLES, WEB SITES,.
>> LET'S GO INTO RATHER THAN
TALKING ABOUT THE TALKY TALK
STUFF, LET'S HOW ABOUT THE, THE
FREE STANDING SURGICAL
FACILITIES THAT WE SEEM TO SEE,
YOU KNOW, POPPING UP, POPPING
UP.
ARE THOSE HOSPITAL LICENSED SO
THEY COME UNDER THE HEALTH CARE
FACILITY OR ARE THOSE NOT
LICENSED UNDER THAT STATUTE SO
THAT THIS STUFF DOESN'T APPLY
TO THEM EITHER?
>> YOUR HONOR, I DON'T KNOW
THE, I DON'T KNOW THE ANSWER TO
THAT QUESTION.
>> I'M TRYING TO GET A HANDLE
ON IF YOU CAN SEE WHAT I AM
TROUBLED WITH IS TO BE SURE WE
HAVE A PRACTICAL IMPACT OF THIS
THING BECAUSE YOU KNOW I
UNDERSTAND YOUR ARGUMENT.
AND, AND AND IT HAS SOME, SOME
CERTAINLY SOME VALIDITY TO IT
BUT I AM LOOKING AT THE CONCEPT
OF WHAT IS REALLY A HEALTH CARE
FACILITY AND, AND THEN THE
GENERAL LAW.
WE HAVE TO READ THAT WITH IT,
I'M TRYING TO DETERMINE WHAT WE
ARE ELIMINATING.
IF WE ARE SAYING JUST HOSPITALS
WHAT DO WE MEAN BY THAT?
IS IT JUST THE STANDING
TALLAHASSEE MEMORIAL HOSPITAL
OR IS IT THE --
>> IS IT ANY HOSPITAL, ANY
FACILITY THAT IS LICENSED UNDER
CHAPTER 395 FLORIDA STATUTES.
WHICH DEALS WITH HOSPITAL
LICENSING AND REGULATIONS.
HOSPITALS AND OTHER LICENSED
FACILITIES ARE COVERED IN PART
ONE OF THAT CHAPTER.
THE PART TWO DEALS WITH TRAUMA.
PART THREE, RURAL HOSPITALS.
PART FOUR, PUBLIC MEDICAL
ASSISTANCE TRUST FUND.
PART FIVE, FAMILY PRACTICE
TEACHING HOSPITALS.
SO THERE ARE SOME BREADTH AND
SOME SCOPE TO THE, TO THE, TO
THE CHAPTER THAT DEALS WITH
HOSPITAL --
>> SO IF WE ADOPT THAT
INTERPRETATION THEN, THEN WE
ARE LOOKING TO THOSE ARE THE
KINDS OF, QUOTE, HEALTH CARE
OF US ITS THAT ARE REFERRED TO,
IN THE QUOTE, GENERAL LAW ON
PATIENTS' RIGHTS AND
RESPONSIBILITIES, AND SO THE
REST OF THE THINGS ARE NOT
COVERED?
>> NO, YOUR HONOR.
IT MEANS -- WHEN YOU'RE, WE'RE
NOT JUST LOOKING AT THE GENERAL
LAW.
WE'RE LOOKING AT THE GENERAL
LAW RELATED TO PATIENT -- THE
PATIENTS' BILL OF RIGHTS.
>> THAT'S WHAT I MEAN, THE
PATIENTS' BILL OF RIGHTS.
>> LOOKING AT THAT, THESE ARE
THE THINGS THAT ARE COVERED,
FACILITIES LICENSED UNDER
CHAPTER 395, INDIVIDUAL DOCTORS
LICENSED UNDER CHAPTERS 458,
459, 461.
IT'S VERY SPECIFIC, AND IT
GIVES THE COURT GUIDANCE ON HOW
THIS SHOULD BE APPLIED.
>> SO YOUR ANSWER YES, WALK-IN
CLINICS WOULD BE ELIMINATED?
>> IF THEY -- IF THEY ARE NOT
LICENSED UNDER CHAPTER 395, I
THINK THEY WOULD BE ELIMINATED.
HOWEVER, TO THE EXTENT THAT
THAT THEY ARE, TO THE EXTENT
THAT THEY OPERATE BASICALLY
THROUGH ONLY THROUGH A
PHYSICIAN THEN YOU MAY HAVE A,
A SEPARATE ARGUMENT THERE
RELATING TO THE PHYSICIAN.
>> JUSTICE ANSTEAD HAS A
QUESTION.
>> LET ME ASK JUSTICE
PARIENTE'S EARLIER QUESTION
WHEN YOU BEGAN AND REALLY IN
THE CONTEXT OF DISCUSSION THAT
WE HAVE BEEN HAVING IS THAT
REALLY EXTREMELY TECHNICAL
DISCUSSION -- TALKED ABOUT THE
PARTICULAR LICENSING, YOU KNOW,
FOR HOSPITALS AND RELATED
FACILITIES AND THE EXCLUSION OF
OTHERS BECAUSE THEIR LICENSED
SOMETHING ELSE.
AND WE KNOW THAT THERE'S JUST
THIS ENORMOUS VARIETY --
[INAUDIBLE]
THINKING, QUOTE, AVERAGE VOTER,
THAT YOU'RE SAYING THE AVERAGE
VOTER WOULD BE SUPER INFORMED
ABOUT ALL THESE TECHNICALITIES.
BUT THE AVERAGE VOTER IS
TALKING ABOUT RECEIVING HEALTH
CARE WOULDN'T DICE AND SLICE
ALL OF THESE THINGS.
WOULD THEY?
WOULDN'T THEY JUST BE THINKING,
MY GOSH, ANYTIME I RECEIVE CARE
FROM A NURSE OR A WALK-IN
CLINIC OR WHATEVER, THAT I'M
RECEIVING HEALTH CARE.
AND THAT, YOU KNOW, BY HEALTH
CARE PROVIDER, SO HELP ME WITH
THE FACT THAT AVERAGE VOTER
WOULDN'T THINK THAT -- IN MUCH
BROADER TERMS SAYING AND IF
THAT HAPPENS I AM GOING -- I
KNOW I AM GOING TO HAVE ACCESS
TO THE PREVIOUS RECORD OF THOSE
PEOPLE WHO PROVIDED THIS CARE.
HELP ME WITH THAT BECAUSE I, I,
I WASN'T SATISFIED WITH THE
RESPONSE YOU GAVE TO JUSTICE
PARIENTE BEFORE IN TERMS OF
AGAIN, THIS AVERAGE VOTER NOT
THINKING IN TERMS OF THE, OF
ALL OF THIS COMPLICATED
STATUTORY REGULATORY SCHEME.
MY GOSH, IF I RECEIVE SOME FORM
OF TREATMENT, NOW I AM GOING TO
HAVE ACCESS TO THE RECORDS OF
WHOEVER PROVIDED ME THAT.
>> WELL YOUR HONOR I THINK IT
WAS NOT SO COMPLICATED BECAUSE
IN THE LEAD UP TO --
>> YOU DISAGREE THAT THE
AVERAGE VOTER WOULD HAVE A
BROADER CONCEPT THAN YOU'RE
ADVANCING TO US?
>> I DO, YOUR HONOR.
>> AND WHAT'S THE BASIS OF
THAT?
>> WELL, THE BASIS OF THAT IS
THAT IF, IF, IF THE, THERE ARE
GOING TO BE TWO TYPES OF
VOTERS.
ONE WHO'S GOING TO LOOK AT THIS
AND SAY WHAT DOES IT MEAN WHEN
IT REFERENCES PATIENTS' RIGHTS
AND RESPONSIBILITIES AND MAYBE
IS THAT HYPER INFORMED VOTER.
THE OTHER ONE IS GOING TO LOOK
AT THE NEWSPAPER, LISTEN TO THE
NEWS, AND SAY, WHAT DOES THIS
AMENDMENT MEAN.
AND THE STEADY DRUM BEAT --
>> WHY DO THEY NEED TO LOOK IN
THE NEWSPAPER OR LOOK AT THIS
OTHER STUFF?
AREN'T THEY JUST APPLYING THEIR
COMMON SENSE TO WHAT THEY
BELIEVE THESE TERMS MEAN?
>> CERTAINLY VOTERS WANT TO USE
COMMON SENSE BUT IF THEY WALK
INTO THE VOTING BOOTH USING
NOTHING BUT COMMON SENSE AND
DON'T READ THE LANGUAGE.
IN FACT, I THINK THAT FALLS
OUTSIDE OF, OF THE BOUNDARIES
OF COMMON SENSE IF YOU WALK
INTO THE VOTING BOOTH
UNINFORMED YOU DON'T READ THE
TERMS OF WHAT IT IS YOU'RE
ABOUT TO --
>> I'M NOT TALKING ABOUT
READING THE TERMS BUT ALSO
TAKING THEM IN A VERY COMMON,
BROAD MEANING.
>> WELL, YOUR HONOR, I THINK
THAT IT DOES IT DOES TALK ABOUT
LIMITING IT TO PATIENTS' RIGHTS
AND RESPONSIBILITIES SO TO THE
EXTENT THAT THEY BELIEVE THAT
IT, THAT AS A PATIENT THEY
WOULD, THAT THEY WOULD HAVE
RIGHTS, I THINK THEY WOULD HAVE
TO, YOU KNOW, I THINK THAT THEY
WOULD HAVE TO LOOK INTO THAT.
>> YOU KNOW, THE PROBLEM I HAVE
IS THAT IN TERMS OF AGAIN WHAT
WE'RE LOOKING AT, THE MOST
SOPHISTICATED OF THE AGENCIES,
THE AGENCY FOR HEALTH CARE
ADMINISTRATION TOLD THIS COURT,
AND IT WAS FILED WITH THIS
COURT, THAT IN ORDER TO COMPLY
WITH THIS REQUEST, IT WOULD
ESTIMATE THAT IT NEEDED FOUR
STAFF AND $440,000 FOR
ADDITIONAL RECORDS REQUESTS
ASSOCIATED WITH ADVERSE
INCIDENTS FOR NURSING HOMES AND
ASSISTED LIVING FACILITIES.
NOW, SO THAT WHAT YOU'RE REALLY
TELLING US, AND THE COURT,
ALTHOUGH THE PROPONENT SAID NO
THEY WOULDN'T HAVE THAT, THE
COURT HAD THAT UNDER
CONSIDERATION.
SO, WE'RE NOW SAYING THAT AHCA
GOT IT COMPLETELY WRONG.
THEY READ THIS AMENDMENT, AND
IT WAS SO SIMPLE.
BUT THEY THOUGHT IT APPLIED TO
NURSING HOMES.
THEN WE HAVE THE FIFTH
DISTRICT'S OPINION THAT
PRECEDED BUSTER.
IN FOOTNOTE 6 ASSUMED THAT IT
WAS ELIMINATING BROAD
PRIVILEGES.
AND AS I RECALL AS MY MEMORY IS
REFRESHED, THE WHOLE IDEA OF
THIS WAS THAT PATIENTS, YOU
KNOW, BEFORE YOU ARE GOING TO
GO AND GO TO A HOSPITAL, A
DOCTOR, OR TO ANY KIND OF
HEALTH CARE PROVIDER, REALLY,
NOT JUST FOR THE ONE THAT'S
ALREADY A VICTIM OF THE
INCIDENCE.
WANTS TO KNOW WHAT'S THE TRACK
RECORD.
YOU KNOW, WHETHER THEY ARE
GOING TO AN AMBULATORY CENTER,
A WALK-IN CLINIC THEY WANT TO
KNOW IS THIS A PLACE THAT HAS
BEEN SUED A WHOLE LOT OR THIS
SOME PLACE I CAN RELY ON AND WE
ARE LOOKING AT HERE A NARROW
SITUATION OF A, OF A NEGLIGENCE
CASE BUT REALLY THE PROTECTION
WAS TO BE MUCH BROADER SO THAT
A PATIENT HAD A RIGHT TO KNOW
BEFORE THEY GO SOMEPLACE
WHETHER THIS IS A PLACE THAT IS
AT LEAST SAFE ENOUGH BECAUSE
THEY HAVEN'T HAD A WHOLE LOT OF
ADVERSE MEDICAL INCIDENTS.
WHY ISN'T THAT A MORE LOGICAL
EXPLANATION OF WHAT THE VOTERS
THOUGHT ESPECIALLY CONSIDERING
THE NEWSPAPER ARTICLES I CAN'T
IMAGINE WE WOULD USE THAT BUT
THE DOCUMENT THAT WE HAD
SPECIFICALLY SAID IT'S GOING TO
IMPACT NURSING HOME REQUESTS.
>> IN MY LINE OF WORK I FIND
THAT AHCA MAKES MISTAKES ALL
THE TIME.
IN FACT YOU NEED TO GO NO
FURTHER THAN THE DIVISION OF
ADMINISTRATIVE HEARING TO
COLLECT A STACK OF ORDERS THAT,
THAT SHOWS THE STAKES THAT THEY
HAVE MADE AND INTERPRETING THE
REGULATIONS THAT THEY INTERPRET
EVERY DAY.
I CAN'T GET INSIDE THE HEADS
OF, OF AHCA AND EXPLAIN WHY IT
IS THAT THEY THOUGHT THIS
APPLIED.
OTHER THAN TO SAY RARELY HAVE I
EVER SEEN A GOVERNMENT ENTITY
THAT WHEN ASKED WOULD YOU NEED
MORE MONEY TO DO THIS HAS SAID
NO.
UNDER THE FIFTH DISTRICT'S
READING IN BUSTER A SPRING SIDE
NURSING HOMES THEY DIDN'T
SPECIFICALLY TAKE ON THE ISSUE
OF WHETHER NURSING HOMES WERE,
WERE TO BE UNDER THIS --
>> WELL, WHAT I AM SAYING ABOUT
IT IS THEY ASSUMED AGAIN WE
HAVE GOT A LOT OF PRIVILEGE
STATUTES AND THEY ASSUME THAT
THE PRIVILEGE STATUTES PEER
REVIEW RECORDS WERE GOING TO BE
ELIMINATED BY THIS AMENDMENT?
WOULD YOU AGREE WITH THAT WE
ARE JUST HERE TALKING ABOUT
NURSING HOMES BUT I AM ASKING
YOU WHETHER THE FIFTH DISTRICT
THOUGHT IT WAS A BROAD
ELIMINATION OF PRIVILEGES.
>> I DON'T KNOW THAT THE FIFTH
DISTRICT THOUGHT THAT OR NOT OR
IF IT WAS CAUGHT UP IN A STRING
SIGHT A COUPLE OF NURSING HOME
PRIVILEGES.
>> THEY ARE JUST DOING IT
BUMBLING ALONG.
>> NO, THERE IS NO BUMBLING
ALONG.
THEY DIDN'T ADDRESS NURSING
HOMES BECAUSE NURSING HOMES
DON'T FALL UNDER THIS.
THERE WERE PRIVILEGES MENTIONED
IN THE DISCUSSION OF PEER
REVIEW, OF PEER REVIEW CONTEXT
AND WE CAN'T TAKE FROM THAT --
WE HAVE TWO WELL REASONED
OPINIONS BY THE FIRST DISTRICT
COURT OF APPEALS AND FIFTH.
>> DID THIS COURT MAKE A
DETERMINATION EITHER ON THAT
FOOTNOTE?
DID THIS COURT SAY ANYTHING
ABOUT --
>> IT, IT, IT, IT ACTUALLY,
ACTUALLY I BELIEVE IT DID, YOUR
HONOR.
WHEN IT TOOK UP THE BUSTER
CASE, WHICH I REFERRED TO AS
BUSTER TWO IN MY MEMORANDUM, IT
EFFECTIVELY ABROGATED THAT
PORTION OF THE OPINION BECAUSE
THIS, THIS COURT SAID THE
SECTION 381.028, WHICH WAS THE
STATUTE THAT IMPLEMENTED
AMENDMENT 7 AND HAD THE EXACT
SAME DEFINITIONS IN IT, THAT
ARE IN 381.026, THIS COURT SAID
THOSE DEFINITIONS ARE FINE.
IN FACT, IT POINTED TO THEM AS
AN EXAMPLE OF ONE OF THE THINGS
THAT WAS RIGHT ABOUT THE
STATUTE.
>> WHAT DID THIS COURT DO IN
RESPONSE TO THE ARGUMENTS MADE
ABOUT FINANCIAL DISCLOSURE?
WHAT WAS THE ULTIMATE -- DID WE
ACCEPT?
>> ULTIMATELY, YOUR HONOR, THE
COURT ACCEPTED THE FINANCIAL
IMPACT STATEMENT AND THEY PUT
OUT A VERY NARROW FINANCIAL
IMPACT STATEMENT THAT SAYS THAT
THEY WERE ACCEPTING -- THAT DID
NOT MENTION NURSING HOMES AT
ALL.
SO ABOUT A PARAGRAPH LONG, IT
CITED ACTUALLY AT -- TAB ONE OF
PETITIONER' REPLY BRIEF.
IT WAS A VERY, AND IT IS THAT
THE COURT WAS NOT PASSING ANY
JUDGMENT ON THE SUBSTANTIVE
CORRECTNESS OF THE, THE
FINANCIAL IMPACT INFORMATION IT
HAD RECEIVED.
IT IS THAT IT MET THE TECHNICAL
REQUIREMENTS.
IT WAS GOING TO ALLOW IT TO
STAND ON THAT BASIS.
>> WITH THAT YOU HAVE USED UP
YOUR TIME.
IF YOU WOULD LIKE TO MAKE A
CONCLUDING STATEMENT.
>> YOUR HONORS, I THINK THE
STATUTE IS, IS VERY CLEAR IN
TERMS OF ITS REFERENCE TO, TO
SECTION 381.026 FLORIDA
STATUTES.
THAT ONLY DOCTORS AND HOSPITALS
WERE MEANT TO BE INCLUDED UNDER
THIS AMENDMENT.
I THINK THAT THE INFORMATION,
AN UNPRECEDENTED AMOUNT OF
INFORMATION WAS RELAID TO THE
PUBLIC ABOUT THIS AMENDMENT
BEFORE THEY VOTED ON IT.
ALL THAT INFORMATION SAID IT
APPLIES TO DOCTORS AND
HOSPITALS, AND I THINK THAT THE
VAST MAJORITY OF FLORIDIANS
KNEW WHEN THEY WERE WALKING
INTO THE VOTING BOOTH THAT THEY
WERE VOTING ON AN AMENDMENT
THAT APPLIED TO DOCTORS AND
HOSPITALS.
THANK YOU VERY MUCH.
>> THANK YOU VERY MUCH.
>> THANK YOU, YOUR HONORS IN
BRIEF REBUTTAL I JUST WOULD
LIKE TO TURN TO THE BALLOT
SUMMARY VERY BRIEFLY.
THAT WAS THE INFORMATION THAT
WAS MOST IN THE MINDS OF THE
VOTERS THAT WAS WHAT WAS BEFORE
THEM IN THE VOTING BOOTH AND
ALL IT SAYS IS THIS, CURRENT
FLORIDA LAW RESTRICTS
INFORMATION AVAILABLE TO
PATIENTS RELATED TO
INVESTIGATIONS OF ADVERSE
MEDICAL INCIDENTS SUCH AS
MALPRACTICE.
EXTREMELY BROAD LANGUAGE, AND
IT WOULD MAKE A REASONABLE
PERSON SITTING IN THE VOTERS
BOOTH THINK THAT ALL PEER
REVIEWED STATUTES, INCLUDING
THOSE RELATED TO NURSING HOMES,
WERE GOING TO BE ABROGATED
ABROGATED BY THE AMENDMENT AND
THAT'S WHAT THE FIFTH DISTRICT
SAID IN BUSTER.
AND IT HAS A CITATION OF ALL
THE PEER REVIEW STATUTES THAT
IT SAYS -ELIMINATED AND THAT
INCLUDES THE NURSING HOME
STATUTE.
>> WHAT DO YOU DO THOUGH THEN
WITH THE, IF YOU DIDN'T HAVE
THAT, THAT, THE GENERAL LAW
RELATING TO PATIENTS' RIGHTS
AND RESPONSIBILITIES IS WHAT
THROWS US THOUGH BACK INTO THIS
FUSS THAT'S GOING ON, CORRECT
THERE AND --
>> I, I UNDERSTAND THAT, YOUR
HONOR.
>> SO THAT'S THE PROBLEM.
>> BUT I THINK YOU JUST NEED TO
READ THAT PROVISION IN LIGHT OF
THE AS YOU DO MOST
CONSTITUTIONAL PROVISIONS AND
THAT TO GIVE IT BROAD EFFECT
EFFECTUATE THE RIGHT INTENDED
BY VOTERS BECAUSE CONSTITUTIONS
ARE LIVING DOCUMENTS THEY ARE
NOT EASILY AMENDED AND THEY
CAN'T BE CONSTRUED TO FRUSTRATE
THE WILL OF THE PEOPLE.
AND I THINK IF YOU READ THAT
TERM, GENERAL LAW RELATED TO
PATIENTS' RIGHTS AND
RESPONSIBILITIES, IT'S VERY
REASONABLE TO READ IT BROADLY
AS INCLUDING ALL PATIENTS, ALL
LAWS RELATED TO PATIENTS'
RIGHTS AND THERE ARE NUMEROUS
LAWS RELATED TO PATIENTS'
RIGHTS, MOST NOTABLY, SECTION
400.022 THAT DEFINE A NURSING
HOME AS A NURSING HOME
FACILITY.
WITH THAT, I'D ASK THIS COURT
TO QUASH THE DECISION OF THE
FOURTH DISTRICT, TO DISAPPROVE
THE DECISION OF THE FIRST
DISTRICT, AND REMAND WITH
DIRECTIONS TO LET US HAVE THESE
DOCUMENTS.
THANK YOU, YOUR HONOR.
>> THANK YOU.
AND THANK BOTH OF YOU FOR YOUR
ARGUMENTS AND HELP TODAY.