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Lawyer wants all records? All?

By Mary Jo Melone

9/24/2009 © Health News Florida

Florida patients have a right to ask for records about mistakes that have occurred in hospitals. But do they have the right to get every report, every x-ray, every single piece of paper for the last 75 years?

Tampa’s largest hospital says no.

When medical malpractice lawyer Michael J. Trentalange asked St. Joseph’s Hospital for every “adverse incident” report made since the hospital opened in 1934, the hospital pushed back hard. In July, the hospital sued him, and Trentalange sued right back.

Demands like Trentalange’s have become common maneuvers by medical malpractice lawyers since the adoption of Amendment 7 in 2004, which gave patients broad access to medical records. But the demands are typically made in the context of lawsuits – not by a patient on his own, which is what Trentalange says he is.

The dispute is over his colon—and perhaps somebody else’s.

Trentalange said he asked for the records because he expects to have a colonoscopy at the hospital. “I’d like to know how many people (at St. Joseph’s) get perforated colons during colonoscopy,” he said.

Why not limit his request to records involving colonoscopies? His response: “I could have a family member contemplating another procedure.”

Meanwhile, Trentalange is representing the widow of a Hernando County man who died of sepsis from a perforated colon -- the very thing Trentalange wants to know about for himself – two days after treatment at St. Joseph’s. Trentalange has made a records request for that suit identical to his own.

The demand has the hospital reeling. It wants Hillsborough Circuit Judge James Barton to limit the records subject to release as those involving death, brain or spinal injury, disfigurement, bone fractures and dislocations.

Even with those limits, the hospital would still have to deal with significant hurdles, like privacy under the Health Insurance Portability and Accountability Act (HIPAA).

“Just the logistics of the hospital trying to pursue it is extremely burdensome,” said St. Joseph’s attorney, Andrew S. Bolin. “Copy (the records.) Redact them. Copy them. You would be talking about potentially tens of thousands of records.”

This is just what medical and hospital groups warned would happen in 2004 during the campaign over the Patients’ Right to Know Act, better-known at the time as Amendment 7 to the state constitution. It was sponsored by the Florida Justice Association, which represents trial lawyers.

Voters liked the idea of being able to check on their hospitals and gave the amendment 80 percent approval. But in the spring of 2005, the Legislature passed a law sharply scaling back its provisions, exempting most records and saying it wouldn’t apply to incidents that occurred before its passage.

In 2008, the state Supreme Court threw out the Legislature’s restrictions. Hospitals, including St. Joseph’s, began to comply with record requests – until Trentalange’s came in.
The Tampa attorney said it’s not as big a deal as it sounds. For one thing, he scaled back the request to those since 2000, since records weren’t readily available for prior years.

“It’s a fairly simple process,” he said. “They’re supposed to comply with the law. There is no reason why in five years they couldn’t have their people find a way to make this painless.”

He denies he’s using the tactic to get more information for his client’s case or that he’s trying to find other clients, since names are redacted from the records.

As part of its lawsuit, St. Joseph’s wants Trentalange barred from representing anyone in any malpractice case in which records produced by his request are used or might be used. In his legal papers, Trentalange seeks to have that count of the hospital’s lawsuit stricken.

--Tampa free-lance writer Mary Jo Melone can be reached at maryjomelone@mjmwrites.com.