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49 lost cases shock some, not others

By Carol Gentry
8/28/2009 © Health News Florida

A report about the state dropping complaints against 49 doctors because it missed the filing deadline drew surprise from some in Tallahassee, but not from a group in Washington that tracks states’ medical discipline. 

“Florida is one of the worst in the country; it’s been going down, down, down, down over the years,” said Sidney Wolfe, MD, director of Public Citizen, a consumer and health advocacy lobbying group.

He noted that in his group's annual ranking of states on serious disciplinary actions, Florida has recently had a rate half that of many states. The slide has been going on for 15 years, said Wolfe.

“They’ve just tanked,” he said. ”What is wrong with the Florida medical board?”

But it’s not the medical board that dropped the cases. In fact, the Board of Medicine chairman, Dr. Fred Bearison, tried and failed to get information about the dropped complaints from the agency that has them, the state Department of Health.

”We don’t have any control over cases that haven’t been presented to us,” Bearison said. “We don’t even know about them.”

DOH, which receives and investigates complaints against health professionals, did not process them within the six-year statute of limitations enacted by the Legislature in 2001. It was part of “tort reform,” a package of bills intended to discourage frivolous lawsuits and lower medical malpractice insurance premiums.

The trial bar opposed the statute of limitations, as it did much of the tort reform legislation, said Debra Henley, deputy executive director for the Florida Justice Association in Tallahassee. But even that group didn’t foresee this outcome. 

“We never in a million years knew how many cases would be affected,” she said.

All that is known publicly about the cases is that some involved serious patient harm, including deaths, according to Chief Prosecutor Ephraim Livingston, who made the comment at a Board of Medicine meeting in June. He said some of the cases were not reported to DOH until they had finished going through civil courts, a long and torturous process. Some fell victim to an overloaded staff, and some simply fell through the cracks.

“There are going to be a lot of cases we didn’t protect the public on,” he told the board.

Health News Florida reported the dropped complaints on Thursday, citing DOH documents and Livingston's remarks. In June, he had said there were 89 cases that could die because of the time limit.

However, staff attorneys were able to dismiss some and find legal justification for an extension of others, bringing the total down somewhat. DOH Press Secretary Eulinda Smith said this week that 49 cases had been dropped because of the statute of limitations and a dozen others were close to the deadline.
In declining to release any information on the cases, DOH cited state law that keeps complaints secrets if they haven’t reached a certain stage of the administrative process: They become public 10 days after a medical board committee finds “probable cause” that there has been a violation of the medical practice act.

--Carol Gentry, Editor, can be reached at 727-410-3266 or through e-mail.