By Amber Statler-Matthews, BrowardBulldog.org

Northwest Medical Center

Harlan Ginsberg of Coral Springs was rushed to Margate’s Northwest Medical Center in 2006 after a kidney stone attack. During surgery to remove the stone, he says, a doctor mistakenly cut a tube that delivered urine to his bladder and removed a kidney that another doctor testified was healthy.

Relying on a voter-approved provision in Florida’s Constitution, Ginsberg’s medical malpractice attorney asked Northwest Medical to turn over its reports about other patients’ “adverse medical incidents” of the type Ginsberg claimed he suffered. The hospital initially refused. Later, it agreed to search its records – but only if Ginsberg coughed up $77,550 in advance.

Ginsberg refused to pay and didn’t get the records. In October, he lost his malpractice case in Broward Circuit Court against the 215-bed hospital and two of its doctors who treated him. Fort Lauderdale attorney Andrew Winston is considering whether to appeal.

“The hospital went to extraordinary lengths to prevent Mr. Ginsberg from obtaining the information he was entitled to under the Florida Constitution,” said Winston.

Seven years ago, Florida voters overwhelmingly approved a Constitutional amendment that gave patients who had been hospitalized the right to see reports dealing with botched medical procedures and poor care. While the amendment could be used to give patients vital information before a medical mistake is made, its practical and more much publicized purpose was to give aggrieved patients more power in court by opening up malpractice complaints and confidential internal reviews of doctors and hospitals.

The Patients’ Right to Know Act was hailed as a major victory for individuals seeking to know more about their hospitals and doctors. But it hasn’t always worked out that way.

Since the law’s inception, hospitals have thrown up roadblocks and legal challenges to block access to patient records. In response, patients across Florida are using the law to ask judges to pry open reports about medical errors.

‘UNDULY BURDENSOME’

In Ginsberg’s case, Northwest Medical’s attorneys produced to the court a 10-page affidavit from a hospital risk manager who called Ginsberg’s request “unduly burdensome.” A hospital lawyer said it would take the equivalent of at least 235 days just to research it. After months passed and the judge did not rule on the records request, Ginsberg’s lawyer withdrew it to expedite trial.

Northwest Medical is owned by the Hospital Corporation of America.

The Florida First Amendment Foundation is a private, non-partisan and non-profit organization that promotes the public’s constitutional right to oversee government through the state’s open government laws. Foundation President Barbara Petersen said the hospital’s hefty fee is “ridiculous – regardless of the affidavit – and amounts to an effective denial of access.”

“It is troubling that the hospitals would systematically deny records as required,” said state Rep. George Moraitis Jr., R-Fort Lauderdale.

While some hospitals comply with the law, others don’t, saying they have exclusive rights to the records or that their method of record-keeping does not fit their definition of documents required for release by the amendment. Broward Health, the county’s largest healthcare provider which operates Broward General Medical Center and other facilities, says it considers disclosure on a case by case basis.

Sean Domnick, a Palm Beach Gardens attorney, said some hospitals release a limited amount of information. But he said most avoid complying with the law.

“What we are finding now is hospitals aren’t investigating and reporting incidents like they’re supposed to. So there is no documentation,” said Domnick, who won a 2008 state Supreme Court ruling to obtain medical records on behalf of a patient.

PATIENT RIGHTS IN FLORIDA

The amendment, heavily backed by trial lawyers who anticipated an increase in medical malpractice lawsuits, was overwhelmingly approved by 81 percent of voters at a time when doctors and lawyers were in a pitched battle over malpractice lawsuits and patient rights.

Hospitals are legally required to investigate and keep records of adverse incidents, including patient complaints, as spelled out in the state’s General Records Schedule for Hospitals. Patients are supposed to be able to get access to those reports, but seven years later that’s not always the case.

Soon after the amendment was approved, hospitals began lining up to challenge the scope and wording of the patient records law.  Five months after the election, at the urging of hospitals, Florida legislators voted to limit the scope of the amendment. At the time the move was praised by Dr. Dennis Agliano, a Tampa surgeon who was president of the Florida Medical Association.

Today, the battleground is the courts.

“When presented with these cases, the courts are almost unanimously siding with the patient,” said Domnick.

Nova Southeastern University Law Professor Mike Flynn, who teaches classes on medical malpractice, said resistance by hospitals makes it seem as if they have something to hide.

“The amendment was designed to open up the records kept by the hospitals,’’ he said. “The idea is to permit patients access to the unsanitized version of what may have gone wrong in the treatment of a patient. The process requires relentless pursuit of the information.”

LEGAL CHALLENGE

In August, the Third District Court of Appeal in Miami sided with Dania and Ricardo Acevedo of Pembroke Pines, who alleged that a surgeon at Doctor’s Hospital in Miami negligently performed unnecessary surgery. The court ordered the hospital to hand over patient records to the Acevedos who continue to press their malpractice case against the hospital and others in court.

Hospitals cite a variety of reasons for not complying with the Constitutional amendment.

A routine argument is that Amendment 7 is too vague about which documentation must be turned over to patients. Hospitals also claim the records are exempt from disclosure because they are legally privileged.

The South Broward Hospital District, which operates the Memorial Healthcare System, usually rejects requests for adverse patient records because its records are not organized and maintained in a way that fits the definition of documents that must be released, according to Kerting Baldwin, director of media relations for the Memorial Healthcare System.

“Rather, most hospitals, including Memorial hospitals, maintain incident reports which are not producible as such under Amendment 7,’’ Baldwin said in a written statement.

Cleveland Clinic Weston is among hospitals that claim they have exclusive rights to adverse medical incident reports, and therefore they cannot be given to patients, according to an E-mailed statement from Arlene Allen-Mitchell, communications manager for the hospital.

Hospitals take such positions with near impunity. Florida’s Agency for Health Care Administration “does not have the ability to regulate or make a facility follow Florida’s Constitution,” said AHCA spokeswoman Shelisha Coleman. “That is up to the judicial system and is something that should be addressed in the courts.”

SOME HOSPITALS COMPLY WITH THE LAW

On the other hand, Tenet Healthcare Corp. — which operates the North Shore Medical Center/FMC Campus in Lauderdale Lakes — is among the minority of hospital organizations that said they comply with Amendment 7.

“Tenet Hospitals have and are prepared to make adverse medical incident records available for inspection and copying upon written request by patients and/or patient representatives in accordance with Florida law,‘’ said Shelly Weiss Friedberg, director of public relations for Tenet‘s Florida region, in a prepared statement.

State Sen. Ellyn Bogdanoff, R-Fort Lauderdale, said legal jousting by many hospitals has interfered with the implementation of a law that is “clearly what the public wanted.”

“Obviously (what the hospitals do) is creative from a legal standpoint, but it’s deceptive from a constitutional standpoint,” she said. “Amendments must be written very specifically. Otherwise they are useless.”

UPDATE: Nov. 11 — Will you have to buy flood insurance next year? Will your rates go up or down? Broward residents will be able to get their first look at the Federal Emergency Management Agency’s preliminary new flood insurance rate maps for the county starting Monday, November 14, in Pembroke Pines.

The digital maps, which show the extent to which areas are at risk for flooding, will also be on display in open houses at locations in Plantation on Tuesday and Pompano Beach on Wednesday. Here’s a link to the details on times and locations: http://www.fema.gov/news/newsrelease.fema?id=59341

By Amber Statler-Matthews, BrowardBulldog.org 

If Broward County is like the rest of the country, property owners who have never paid for flood insurance will soon be forced to buy the coverage when the Federal Emergency Management Agency unveils its new flood map.

During the past eight years, since FEMA began rolling out its updated maps, property owners in New York, California, Texas, Michigan and other parts of Florida were included in high-risk flood zones without moving or change in geography.

Broward is among the next areas to receive a new flood map, which has not been redrawn locally since the 1980s.

Like many property owners who already have flood insurance, those added to the FEMA map will be buying the protection through a federal program that’s drowning in debt and facing sharp increases in rates.

Approximately 85 percent of Broward – with 800,000 homes and apartments — already sits in a Special Flood Hazard Zone based on the current map, which includes the Everglades conservation area covering the western half of the county.

When a new map came out for Miami-Dade County in 2008 13 of 27 cities, as well as unincorporated area, were notified that there was a greater flood risk within their communities.

The federal government is trying to increase the number of homeowners in the program while also showing that the program is needed, said Dr. Stephen Leatherman, co-director of the International Hurricane Research Center at Miami’s Florida International University.

As a practical matter, though, urban areas like Broward face an increased risk of flooding because of additional growth.

“Increased development and hardening of the land surface with buildings and asphalt can increase the flood hazard of areas,” he said. “The water cannot percolate into the ground as easily and fast.”

The proposed new Broward map won’t be available until the end of this month or October.

A REQUIREMENT FOR MORTGAGES

Unlike windstorm insurance which is available from private sources, the federal government is the primary provider of flood insurance through the National Flood Insurance Program.

The Wall Street Journal reported this month the fate of the insurance program has been “murky” and unstable because rates don’t cover the financial risks of federal taxpayers who underwrite the program. The insurance program has been $18 billion in debt since Hurricane Katrina in 2005.

The National Flood Insurance Program expires at the end of this month if US Congress doesn’t pour more money into the program. The House of Representatives this summer approved a bill that allows premiums to jump as much as 20 percent a year.

Congress passed the Flood Disaster Protection Act of 1973 that requires property owners with a mortgage from a federally regulated bank or other lending institution to purchase flood insurance when a house or other building is in a high-risk area.

Currently, property owners pay an average of $600 a year for flood insurance, according to FEMA. Those with a higher risk pay more. Some property owners could see their insurance go down if the new map shows less flood risk.

HARD TO GET OFF THE MAP

Once your property is determined to be in a designated Special Flood Hazard Zone it’s not easy to shed that costly label. It takes time, experts and money.

“I started the  process four years ago,” said Jack Myers, who has paid for flood insurance even though he owns a home on some of the highest ground in Broward in the Pine Island Ridge area of Davie. “But there was so much red tape I gave up.”

Previous flood maps were created by the U.S. Army Corps of Engineers, using data collected from land surveyors and computers to measure potential flood elevations. Today, FEMA uses satellites to identify locations and airborne lasers to measure land elevations.

Once the new maps are released, there will be a during a 90-day public comment period. Property owners can, for example, protest an incorrect address or other issues. They can at any time file a Letter of Map Amendment (LOMA) to challenge an elevation determination. Click here to learn how to file a LOMA.

To try and get FEMA to reconsider a high-risk flood designation, property owners may be required to hire a land surveyor to assess the elevation of the property and obtain an elevation certificate.

Property owners can view information about their property using existing maps here.

Land owners in Coral Springs, Pembroke Pines and Davie have won challenges over the years based on the current map that’s about to be replaced. There were no new local appeals filed last year, according to FEMA.

Myers owns a house along the Pine Island Ridge in Davie and his property sits at least three feet above the current FEMA flood zone in the Forest Ridge neighborhood. The governing map that has been used to determine flood risk pre-dated Forest Ridge.

Myers filed a Letter of Map Amendment four years ago to rid his house of the special flood designation.  A retired civil engineer, he said his first and second applications were turned down.

“The second was rejected because you didn’t do this or that,” Myers said.

A third try was successful and he won his case in front of FEMA on May 19.

Myers’ bank has agreed to no longer require flood insurance and agreed to take him off the flood zone list for next year. He contacted FEMA and asked for a refund of $315 to cover his flood insurance premium already paid for this year. Myers said he has not received a response.

FEMA OPEN HOUSE PLANNED

Once the new map is finished, FEMA plans an open house.

“We are in the planning stages for an open house where the public can come in and look at the new maps, see where their property is located relative to the special flood hazard area, and ask questions,” said FEMA spokeswoman Margaret J. Cotrill.

The 90-day public comment will start after the open house at a location that’s yet to be determined. When that 90-day period is over, the issues are reviewed. Some appeals or protests may take longer.

According to FEMA, it could be December 2012 before the new Broward map is finished and officially accepted and placed into the public record.

By Dan Christensen, BrowardBulldog.org

Gov. Rick Scott

Florida’s top financial regulator will step down this summer and South Florida securities lawyers who say they’re seeing an ugly resurgence of boiler room stock fraud and bucket shop commodity swindles are calling on Gov. Rick Scott to name a replacement who will beef up state regulation.

J. Thomas Cardwell, a long time lawyer and banking industry insider who’s been in the job since 2009, notified Scott and Cabinet members of his departure plans in a May 16 letter obtained by Broward Bulldog. He wrote that after nearly two years in Tallahassee “it is now time for me to return home to my family in Orlando.”  He offered to stay on until a successor is approved “provided that this can be accomplished by August 31.”

Florida Chief Financial Officer Jeff Atwater’s office confirmed receipt of Cardwell’s resignation letter. “We anticipate doing a nationwide search” for a replacement, said Atwater’s press secretary Alexis A. Lambert. He said Atwater was not available for comment.

Cardwell’s predecessor was fired after an embarrassing series of disclosures by The Miami Herald about regulatory failures the Office of Financial Regulation that allowed criminals to obtain licenses as mortgage brokers. The disclosures, amid the nation’s mortgage foreclosure crisis, led to new state licensing standards and background checks for loan originators in Florida.

In his letter to the governor, Cardwell said the Office of Financial Regulation is now “ably staffed and functioning well.”

But Broward attorneys who make a living representing fraud victims don’t share Cardwell’s view about the soundness of financial regulation in Florida. They say that under Cardwell, enforcement of Florida’s securities laws has lagged and scams that target the elderly and others have flourished.

“There’s no question that mortgage fraud has been a hot topic over the last few years, but in the meantime we’ve seen a proliferation of boiler rooms in South Florida,” said Scott Silver of Blum & Silver in Coral Springs. “The securities side has been neglected.”

“South Florida has a reputation as a kind of wild, wild west of securities fraud for a reason,” said former federal prosecutor David R. Chase, of Fort Lauderdale. “There is a need for institutional change at the state and a new direction to really target some of the more vicious and systemic frauds. The continued focus on isolated rogue brokers misses the bigger picture.”

Such criticism is stoked by the Office of Financial Regulation’s reputation as being slow to respond to investor complaints or take action to stop bad brokers from harming investors.

Outgoing financial commissioner J. Thomas Cardwell

Attorney Jeffrey R. Sonn, of Fort Lauderdale’s Sonn & Erez, said, “I’ve been doing this for 25 years and I never really saw the State of Florida as the cop in terms of rooting out fraud. They don’t show up until long after something goes bad and the money’s gone.”

“The state is not aggressive at all when it comes to protecting people,” said Russell L. Forkey, a veteran Fort Lauderdale litigator.

The Office of Financial Regulation, with a $43 million budget and about 450 employees, regulates the state banking and securities industries. It also responsible for the licensing, examination and enforcement of mortgage brokers, money transmitters, payday lenders, check cashers and car loan outfits.

The last search for a financial regulation commissioner was marked by intrigue.

Broward Bulldog reported in March the story of St. Petersburg securities lawyer Kevin Carreno, whose 2009 bid for appointment as Florida’s top financial watchdog was derailed after he says he threatened to expose regulators for failing to uncover the multi-billion Ponzi schemes of Bernard Madoff and Allen Stanford.

On Monday, Carreno would not say whether he’ll apply again for the post. “When it’s announced I’ll have to take a hard look.”

The Governor and Cabinet, sitting as the Financial Services Commission, have the duty to appoint Florida’s top financial regulator. By law, Scott and Atwater must agree on that person.

Lawyers for victims say they’d like the important post to go to an attorney who has represented investors, can define an effective anti-fraud policy and deploy the office’s resources to implement it.

“Instead of an industry insider, we need someone with experience in helping small investors,” said Silver.

“Until the criminal element realizes that the cost of engaging in securities fraud has gone up significantly there is no reason to stop,” said Chase.

Given the prevailing political climate, however, attorney Sonn thinks the chance for real change is slim.

“Rick Scott is all about building jobs with little or no regulation. I can’t see how anybody he appoints will have a mandate to get the job done,” Sonn said.

 By Donna Gehrke-White, BrowardBulldog.org

The manufacturer of Enfamil has agreed to pay up to $12 million to settle a class-action lawsuit after a Weston mom alleged in federal court that the pricey, but popular baby formula had falsely advertised that it contained nutrients not available in other products.

A website, www.formulasettlement.com was created last week for an estimated 8 million Enfamil LIPIL buyers nationwide to claim their share of the settlement – up to $12, either in cash or in Enfamil formula.

Enfamil’s manufacturer, Mead Johnson, said it did nothing wrong but decided to settle the Broward lawsuit, along with seven others, to avoid costly court expenses.

“We denied the allegations when the cases were filed and continue to maintain that we did nothing wrong,’’ Mead Johnson spokesman Chris Perille wrote in an e-mail to Broward Bulldog.  “However, rather than spend money fighting the lawsuits, we chose to resolve the case in a way that benefits Enfamil customers.’’

U.S. District Court Judge James I. Cohn in Fort Lauderdale gave preliminary approval to the nationwide settlement in March and will hold a final approval hearing on Sept. 26. People have until Aug. 22 to object.

Still to be determined: How much Weston mom Allison Nelson will receive for filing her lawsuit, said her attorney, William C. Wright of West Palm Beach. It has been proposed that she receive $10,000 plus the settlement that other consumers get.

“She was a real trooper,’’ enduring lengthy depositions in a case that was fiercely fought by both sides, Wright said.

To qualify to be part of the Enfamil lawsuit settlement, consumers must have paid for the formula and not received it as part of the federal government’s Special Nutritional Program for Women, Infants and Children (WIC).

Families who bought Enfamil for less than six months will receive $6 in cash or product. Those who bought it longer will get $12 or product. Purchases must have been made between Oct. 13, 2005 and March 31, 2010. Applications for the settlement can be downloaded here: www.formulasettlement.com.

Meanwhile, the settlement proposes that about a dozen law firms representing consumers around the country share $3.5 million in legal fees and $140,000 in expenses upon final approval by the judge, according to Wright and court documents.

Attorney Wright, the father of two whose two children were on Enfamil as babies, said it is a fine product and that was not the issue of the lawsuit. Rather, he and his client, Nelson, who has two children, believe that no company should be able to falsely advertise.

Nelson and other parents who sued objected to Mead Johnson claiming its Enfamil LIPIL brand offered better health benefits than other formulas. LIPIL is Mead Johnson’s name for a blend of two nutrients found in breast milk that promotes brain and eye development in infants. Enfamil, indeed, included those nutrients in its LIPIL formula. But in advertisements and other company literature, Mead Johnson claimed that Enfamil LIPIL was the only formula to do so.

Nelson said in her lawsuit that was false. Other companies also offer the nutrients – at lower prices. Had Nelson known about the cheaper alternatives, she would have opted to buy those, according to her filings.

Mead Johnson refused to drop the ads or further improve Enfamil so it would offer a distinctly better product, Nelson’s lawsuit alleged.

Competitors protested the Enfamil ads in 2008 to the National Advertising Division of the Council of Better Business Bureaus, according to Nelson’s lawsuit. NAD recommended changes in the advertising, but that did not happen, according to a third complaint filed at the agency in 2009. The National Advertising Division said it was “incredulous” that the Enfamil ads were not changed after two compliance hearings, according to Nelson’s lawsuit.

In addition to the agreed payouts, Mead Johnson has dropped from its advertising the language that touched off the lawsuits.

“The specific claims that were challenged in the lawsuits are not used in any materials today,’’ said spokesman Perille.