Florida nursing homes given immunity from new disclosure law
Florida's "right to know" constitutional amendment that allows patients to check records of medical mistakes by health care providers doesn't apply to nursing homes according to the Florida Supreme Court.
The decision in Benjamin v. Tandem Healthcare, Inc. came in a lawsuit over the death of Marlene Gagnon, a nursing home resident who choked to death on food specifically served to her against her doctor's orders.
The decision allows the nursing home to hide relevant and material information from her estate. This includes the nursing homes nondisclosure of an incident report on Gagnon's death. The amendment itself says it covers "health care facilities" and "providers" as defined in general law.
The high court arbitrarily decided that state law doesn't include nursing homes among health care facilities. "They basically said nursing homes do not provide health care," said Jeffrey Fenster, a lawyer for Gagnon's five children. "This strips constitutional rights from the elderly. ... This is just an invitation to more elder abuse."
The amendment never was intended to apply to nursing homes because it refers to "patients" and people in nursing are considered "residents" under state law, said Tony Marshall , association senior vice president.
The amendment was put on the ballot through a petition drive sponsored by consumer advocates. It was one of three initiatives dealing with medical malpractice adopted in 2004, including one that bars doctors with three malpractice judgments from practicing. The third, promoted by the Florida Medical Association, limits how much lawyers can collect in fees.
