December 23, 2008

Contact: Eric W. Boyer, Esq.
Managing Partner
305-670-1101 Ext. 1023


Thomas A. Valdez

TALLAHASSEE — QPWB Partner Thomas A. Valdez, Chair of the firm’s Appellate Practice Group, recently secured a major
victory for Tandem Healthcare, Inc., and the entire nursing home industry, in the case of Benjamin v. Tandem Health Care, Inc.
The case, certified by the Fourth District Court of Appeal as one of great public importance, addressed the question whether “Nursing Homes” or Skilled Nursing Facilities” fall within the definition of the terms “Health Care Facility” or “Health Care Provider” as contemplated by Article X, Section 25, of the Florida Constitution.
Article X, Section 25, adopted in 2004, is also known and often referred to as “Amendment 7” because it was the seventh proposed amendment on the November 2004 ballot. The Amendment gave patients or prospective patients the right to request previously privileged documentation information regarding “adverse medical incidents” from a person or entity defined by the terms of the Amendment as a “Health Care Facility” or “Health Care Provider.”
Prior to this decision, the courts, including the Florida Supreme Court had recognized virtually no limitation on the scope of the Amendment in cases addressing the applicability of the Amendment to Hospitals and Physicians, the two types of entities the Amendment was expressly meant to apply to. In fact, in the case of Florida Hospital Waterman v. Buster and Notami Hospital of Florida, Inc. v. Bowen, the Florida Supreme Court went so far as to rule that the Amendment applied retroactively to require disclosure of document which, at the time they were prepared, were protected from disclosure by statutory privilege.
In Benjamin, the Plaintiff sought to convince the Florida Supreme Court that they should expand their construction of Amendment 7 even further to include Nursing Homes, arguing that it was the intent of the voters to include nursing homes within the definition of the terms “Health Care Facility” or “Health Care Provider”; and that public policy dictated that Nursing Homes should be included within the scope of the Amendment. Ultimately, the Plaintiff sought to convince the Court that nursing home residents and potential residents should be granted access to records of “adverse medical incidents” in nursing homes to the same broad extent that patients of physicians or hospitals have access to the records of those entities.
However, QPWB was successful in convincing the Florida Supreme Court that Amendment 7 does not and was never meant to apply to skilled nursing facilities; and that Plaintiff’s arguments to the contrary should be rejected. QPWB argued the Amendment’s express statement that the phrases “health care facility” and “health care provider” should be given “the meaning given in general law related to a patient’s rights and responsibilities” indicated the Amendment meant to define those terms as they are narrowly defined in Section 381.026, Florida Statutes, “The Patients’ Bill of Rights and Responsibilities” (i.e. to include hospitals and doctors only). Moreover, QPWB argued the Amendment’s express language indicating it was meant to apply to “patients,” a class of people separate and distinct from nursing home “residents,” further evidenced the Amendment’s inapplicability to nursing homes. Finally, QPWB argued that it was never the intent of the drafters of the Amendment or the Voters who voted it into law to include nursing homes within its scope.
All of the participating Supreme Court Justices, though differing subtly in their reasoning, agreed unanimously with QPWB’s position that Amendment 7 did not apply to Nursing Homes, and ruled in favor of QPWB’s client, Tandem Healthcare, Inc.
About QPWB
Quintairos, Prieto, Wood & Boyer, P.A., is a Florida-based law firm providing legal services to corporations, government entities and individuals in the areas of commercial and civil litigation. With six offices throughout the State including Miami, Ft. Lauderdale, Orlando, Tampa, Jacksonville and Tallahassee, and attorneys licensed in several states including the U.S. Virgin Islands.

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