Justices: Nursing homes exempt from records law
TALLAHASSEE (AP) – Florida’s “right to know” constitutional amendment that lets patients check records of medical mistakes by doctors and hospitals doesn’t apply to nursing homes, the Florida Supreme Court ruled Tuesday.
The decision came in a lawsuit over the death of Marlene Gagnon, a nursing home resident in West Palm Beach who allegedly choked to death on coleslaw she had been served against her doctor’s orders.
It means her estate cannot obtain the nursing home’s incident report on Gagnon’s death for a suit against Tandem Health Care Inc., which owns the facility. Tandem claims she died of a heart attack – not the slaw.
The amendment itself says it covers “health care facilities” and “providers” as defined in general law.
The high court agreed with a 4th District Court of Appeal ruling 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.”
Fenster, though, doesn’t expect the decision to prevent his clients from winning their lawsuit because they’ve been able to obtain other key documents through a court order.
The Florida Health Care Association, a nursing home trade organization, filed a “friend of the court” brief siding with Tandem.
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 association senior vice president Tony Marshall.