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State should open complaints on doctors, report urges

By Christine Jordan Sexton
1/29/2009 © Florida Health News

Records of complaint investigations against doctors, nurses, and other licensed health professionals in Florida should be available to the public in the same way as those who have state licenses in other fields, according to a new report released Wednesday.

There is “insufficient constitutional justification” for the Department of Health to exempt investigation records from Florida’s broad open government laws, the Commission on Open Government said in a 194-page report. The commission, which was created by Gov. Charlie Crist, recommended that the law be changed.

One who welcomes the report is Gary Blankenship, who works for the Florida Bar. Complaints against lawyers are open, but when it comes to doctors, he said, “there is no oversight in the system.”

Expect a battle if anyone tries to open health investigation records. Florida Medical Association General Counsel Jeff Scott said the exemption is justified and vowed his group will fight to “keep the status quo.”

Another recommendation sure to draw objections is one that would make it harder for officials to dodge open-records laws by using personal computers and hand-held devices to transact the public’s business. The commission says all agencies need to adopt procedures for retrieving such information covered by the open-records law.

New technology “has changed the nature of communication but it has not diminished the value of Florida’s open government laws or the need for public officials to consistently follow the law,” the report reads.

Complaints against doctors and other health care providers licensed by DOH become public only after DOH staff investigate them and a committee of the licensing board -- of which the majority of members are from the same health profession as the accused -- finds there is “probable cause” to bring a disciplinary action. If no probable cause is found, the records are never made public.

As a result, the commission said, those regulated by DOH and another state agency, the Department of Business and Professional Regulation, get “a higher level of protection” than most state licensees, including teachers, engineers, police officers, legislators, mortgage brokers and others. Licensees of the DBPR include surveyors, veterinarians, auctioneers, contractors and barbers.

DOH licenses more than 40 health professions and 34 types of treatment facilities. It investigates all “legally sufficient” complaints—those that would involve a violation of laws or state rules if they occurred – including those that are filed anonymously. The law requires that complaint investigations be completed within 180 days.

DOH is abiding by the law that keeps the information from being released during the investigative phase, said spokeswoman Susan Smith.

When Crist first became governor he vowed to open up government records and even created a special office to help the public and news media get access. He also created the commission and appointed as chairman Barbara Petersen, president of the Tallahassee-based First Amendment Foundation, a not-for-profit watchdog group.

Florida’s Sunshine Law, first passed in 1967, has been altered almost every year since then and now has more than 1,000 exemptions. In 1992, Florida voters overwhelmingly approved an amendment to the constitution clarifying that citizens have access to records maintained by the Legislature, the governor’s office and the courts as well as state agencies and local governments if public business and interests are being discussed.

It’s not clear whether the governor’s office will include the recommendations on opening complaints against health professionals in its legislative agenda this year. The report is under review, Crist spokesman Sterling Ivey said.

The commission also recommended that the public have better access to information on government spending and that agencies be required to provide internet access to all contracts that exceed a certain amount. The purpose of the contract and identity of the contractor also should be posted to the internet, the report says.

Blankenship, a senior editor at The Florida Bar News, has a personal reason for applauding the report: the outcome of complaints he and his late wife Mary Ann Farrell filed against a doctor who had treated Farrell. Their first complaint said he refused to treat Farrell again after she sought a second opinion. That complaint was dismissed. When she tried to retrieve her medical records submitted with the complaint, Blankenship said, the state refused to return them.

Then someone anonymously dropped Farrell's records off at her house along with a copy of the complaint investigation. It showed the doctor had lied to investigators, Blanketship said. So they filed a second complaint. It too was dismissed.

--E-mail contact for Christine Jordan Sexton. Editor Carol Gentry can be reached at this e-mail or 727-410-3266.