The Villages Daily Sun

TAVARES — Larry Buster slipped into a coma after bleeding from a stomach ulcer for 13 hours while under medical care at Florida Hospital Waterman on Christmas Eve 2000, according to his widow’s attorneys. Buster spent his last Christmas unconscious and hooked to a ventilator. He died two days later.

At the time, Buster’s wife was not interested in anything but mourning the loss of her husband. She had no idea there may have been gross negligence on the part of his doctors, nor did she realize the civil suit she later would file against the hospital was about to add fuel to one of the most combustible health care debates in Florida history.

“I know what it’s like when you face the hospital across the table and they tell you they’ve done something when you know good and well they haven’t done a thing,” said Teresa Buster, referring to her early face-offs with the hospital’s executives. “Before this, I never would have known. Now I know.”

On Nov. 2, 2004, voters overwhelmingly approved Amendment 7, commonly known as the “Patient’s Right to Know” amendment. By definition, the amendment created a constitutional right for people to obtain access to any records of a hospital, nursing home or physician that has anything to do with any act that may have caused bodily injury or death to a patient. The amendment was exactly what Buster hoped for.

More than five years after Larry Buster’s death — after his wife filed her lawsuit, after Florida voters approved the constitutional amendment by a 4-to-1 margin, and after the Florida Legislature passed a bill that seemed to soften the impact of the amendment — an appellate court ruled on the constitutionality of a patient’s rights to obtain a hospital’s incident report, which had long been considered confidential. The court sided with Teresa Buster and ruled those reports could be made public. The final decision on the case will be made by the Florida Supreme Court, perhaps by early next year.

When a patient suffers an injury or dies under a physician’s care, the medical facility conducts an “adverse incident” investigation and interviews everyone involved, including doctors.

Politicians and lawyers have argued that doctors speak more candidly when they know their statements will not be made public. A more accurate investigation can be conducted, they say, because those interviews are held behind closed doors.

Florida legislators pass “enabling bill”

According to state Rep. David Simmons, R-Orange, the amendment was not self-executing, and the Legislature, through a House bill he sponsored last year, approved a law that was designed to clarify it.

“There were trial court opinions holding that it was unconstitutional ... or confusing,” Simmons said. “There were significant reasons for doing an implemented bill.”

In short, and in accordance with the Florida Medical Association, Simmons’ bill was designed to implement the amendment in a way that would not adversely affect a patient’s right to obtain certain records, while ensuring peer reviews remain confidential. The bill’s opponents say the legislation was created to negate the amendment, which was written so that people could have access to those same peer reviews. The bill’s author believes confidentiality in peer reviews is vital in medical investigations.

“Without this bill, doctors are not going to say bad things about fellow doctors in a peer review,” Simmons argued. “When they see a fellow medical care provider doing sloppy work, they’re not going to report it if they disclose those statements to the public. They’re going to have their peers know they have fingered them. The patients gain more when doctors are honest about rating their peers. There is ample reason why there is confidentiality relating to adverse incidents.”

“We would agree with that,” said Philip Braun, a spokesman for The Villages Regional Hospital. “It’s very important to have that material privileged. Our physicians are already fearful of litigation and lawsuits.”

If the Florida Supreme Court handed down a ruling similar to one issued by the lower court, Braun said it would have a significant impact on how hospitals across the state would investigate adverse incidents.

“It’s just not good for patient safety and quality,” he said. “It really allows the trial attorneys to go on a fishing expedition. We always let family members know about our results. We don’t hide adverse incidents, but we don’t think we should provide an opportunity for trial lawyers to set up shop and facilitate lawsuits. That doesn’t help anybody.”

Buster said she has heard that argument many times and her mind is not changed.

“I think that’s a very poor excuse,” she said. “If something’s been done wrong, it needs to be made public. … Those doctors who cared for my husband are still working. The information we have is highly distorted. That fraternity needs to be abolished.”

Representatives at Florida Hospital Waterman declined to comment, and calls to their attorneys in Orlando and Tallahassee were not returned.

Buster’s partial victory

One of the attorneys who represented Buster in the appellate case said the Legislature had no reason to pass a law in conjunction with the amendment.

“The legislation was not necessary,” said Chris Carlyle, who co-manages the Carlyle Appellate Law Firm in The Villages. “Many believe the enabling legislation was not really done to enable anything. It was really meant to undermine what the amendment was all about.”

In an opinion released March 10 by Chief Judge Thomas D. Sawaya, the court agreed with Carlyle.

“The amendment contains sufficiently detailed definitions of the pertinent terms and adopts a fairly narrow policy of allowing access to information regarding adverse medical incidents to patients, including those who seek discovery during the course of litigation against their health care providers,” Sawaya wrote.

Another question the court answered was whether the amendment pre-empts previous statutes that enabled medical facilities to keep certain self-policing procedures in place. The court again sided with the patients.

“A constitutional provision obviously takes precedence over statutes passed by the Legislature,” Carlyle said. “That just makes sense. What’s the point of having a constitution if the amendments can be undone by previous statutes? In this case, the stated intent of the amendment was to modify statutes that placed a veil of secrecy over certain hospital records. To argue that those statutes remain in effect and override the amendment is simply incorrect.”

“They had every intent of taking away the privilege of secrecy between doctors and hospitals,” Buster said of the court’s opinion. “I don’t think anyone can see that opinion and think differently.”

What the court did not do, which was a blow to Buster and her lawsuit against the hospital, was prohibit the amendment from being applied retroactively. That means if the Florida Supreme Court upholds the decision of the appellate court, Buster would not have access to the incident reports she has been seeking all along, which is the main reason she filed the suit in the first place. Because her husband died four years before the amendment was passed, Buster would only benefit if it is applied retroactively to Nov. 2, 2004.

“I’ve already obtained the hospital’s records about what kind of treatment Larry received,” Buster said. “What I don’t have is the evaluation from the hospital. I don’t know whether they ruled it as an adverse incident.

“The case will go on regardless of whether I have that,” she added. “There is sufficient evidence. He hemorrhaged, lost consciousness, and they even worried about his heart stopping six hours before they thought to look for the ulcer. We would just like to know what the doctors know. We would like for them to be accountable.”

The politics of a patient’s right to know

In spite of Buster’s emotional connection to the case, most see the issue as just another political football being tossed around and changing possession — Democrats and trial lawyers on one side and Republicans and doctors on the other.

“That amendment was placed on the constitution by the personal injury trial attorneys,” said Sen. Carey Baker, R-Eustis, who staunchly supported Simmons’ bill. “They raised the money and got that amendment put on the ballot. When we wrote the enabling legislation, we tailored it to what we felt was an appropriate dissemination of medical records. … Our concern was what the ambulance chasers would do with this amendment.”

Sawaya seemingly targeted the legislators’ intent to “tailor” the amendment through the passage of a new law, which he believes threatens the balance of powers.

“(W)hat the people provide in their constitution, the Legislature and the courts may not take away with subsequent legislation or decision,” he wrote.

Baker conceded there are just as many examples of doctors pushing for amendments to counter those pushed by lawyers and vice versa.

“Our constitution was not meant to be a battleground for special interests,” he added. “We’ve just carried it too far and it’s almost embarrassing. We need to add a little more sanity to this.”

Simmons does not believe the amendment provides patients with any real benefit. Like Baker, he thinks it has just been part of the political fodder in the ongoing battle between doctors and lawyers.

“The lawyers said if you try and do that to doctors, then we’re going to pass two amendments for the sole purpose of poking you in the eye with a sharp stick,” Simmons said. “This was not done for some public purpose. A trial lawyer sat in my office and told me that. This was done to hurt doctors. While you have people who believe this was for a public purpose, it was not. It was for the purpose of payback.”

“What interest would the lawyers have in payback to the hospitals when they’re (spending) money putting hospitals to task?” Buster asked after hearing Simmons’ comment. “I’ve struggled for five years with this … after hiring (lawyers) who took this case knowing this was a big expense to them.”

Buster’s civil case is not the first involving a patient’s right to gain greater access to medical records, but her case is the one that will carry the patient’s right-to-know debate to the state’s highest court.

“This debate has been raging for years and this is one of many cases that deals with this subject,” Carlyle said. “It’s still very important. This is really the case that took this very intense battle to the next level.”

In spite of all of the legal and political wrangling in the years since her husband’s death, Buster’s sense of purpose has not blurred. She remembers seeing the image of her husband vomiting blood the morning before he went to the hospital. She remembers seeing the puddles of blood on his gurney. She also remembers medical workers calmly telling her everything would be fine, even though they had not yet discovered why her husband of 23 years was bleeding internally.

Larry Buster, who was 54 when he died, left behind his wife, three children and a grandchild. A second grandchild was born after his death. Teresa Buster, 50, moved away from Lake County and now lives in Oviedo with her youngest son.

Buster said she has had difficulty moving on with her life while her civil suit remains unresolved and the accompanying constitutional debate rages on.

“I haven’t really had closure,” she said. “It’s a lot to drag this out for so long. It’s a constant reminder why my husband is not here.”

Tony Holt is a reporter with the Daily Sun. He can be reached at 753-1119, ext. 9065, or tony.holt@thevillagesmedia.com.