May 1, 2005 Regular News Lawmakers move bills to implement amendments Lawmakers move bills to implement amendments Bills that will give patients access to adverse incident reports and require the removal of licenses from doctors found to have committed three instances of malpractice have advanced in the Florida Legislature.But not all lawmakers are happy with the bills. Sen. Bill Posey, R-Rockledge, added amendments to SB 938, which seeks to implement Amendment 7 on medical records, when the bill was at the Judiciary Committee. That replaced language in the bill with language from the amendment and was needed, Posey said, because it allowed narrower access to medical records than the amendment. That, he said, would be unconstitutional.Those amendments in turn were removed when the bill reached the Senate floor on second reading April 13, despite Posey’s arguments. The bill passed the Senate on final reading the next day.“It makes no sense to limit access to information that over 80 percent of our voters said they want public,” Posey said. “The only reason for this amendment is to make the legislation match the constitution.”Sen. Durell Peaden, R-Crestview, and Sen. Burt Saunders, R-Naples, argued the amendment went too far and would discourage doctors from coming to Florida. It would also discourage doctors and hospitals from doing peer review, which improves medical care.Sen. Skip Campbell, D-Tamarac, noted that Posey’s language only tracked the constitutional amendment and challenged them to show where it went further.But the Senate rejected the amendment.SB 940, which addressed Amendment 8, known as the “three strikes” bill, also passed the Senate on April 14. Peaden said the bill specified that only acts of malpractice after November 2, 2004, would be counted.The bill also provides that any malpractice court verdicts, which are determined by a preponderance of the evidence, will be reviewed by the Board of Medicine to see if they meet a clear and convincing evidence standard. Supporters of the bill have argued that’s needed because case law has established that a license cannot be removed except by clear and convincing evidence.On both the Senate floor and before the Senate Judiciary Committee, senators expressed dissatisfaction with the battle between trial lawyers and doctors that resulted in Amendments 7 and 8, and another amendment that limited attorneys’ contingency fees in malpractice cases.“There never should have been this fight,” Campbell said at the committee meeting. “Some day doctors and lawyers will sit down and sing ‘Kumbaya,’ if there are any of them left.”He questioned whether any implementing legislation was necessary and said that SB 938 won’t withstand court scrutiny.“This bill will probably be held unconstitutional because it doesn’t fulfill the constitutional amendment,” he said.SB 938 passed the Senate 38-2, while SB 940 passed 35-3.Representatives of the Florida Medical Association and the Florida Hospital Association praised Peaden’s bill — without Posey’s amendments, and said it would protect good doctors and the peer review process. But Paul Jess, representing the Academy of Florida Trial Lawyers, said on SB 940, “The bill as it is currently written is unconstitutional.”He noted that during arguments at the Supreme Court, justices said the amendment would take all discretion away from the Board of Medicine, while the bill gives it back to the board in determining clear and convincing evidence. He also said that the board has before removed a medical license based on a case in another state where the standard was preponderance of the evidence.Similar bills in the House, HB 1797 and HB 1739, were created in the House Judiciary Committee and have now passed the Health Care Regulation Committee and the Health and Families Council and have been sent to the House floor.