…the adventures of Chapter 766
Chapter 766 Presentation to the Florida Legislature
My Father passed away in Florida. He had relocated from Ohio and became a Florida resident years before. My Father, being a retired Harvard Medical School Graduate General Surgeon, expected the best from his “Public Healthcare” providers. My Father understood that there are Foundational practices of GOOD medical care. Desiring to please Father, in a codependent relationship, sent me into a field of “Public Health” as a medical provider of Foot Health care. Yes, unable to attend Harvard Medical School, I became a Podiatrist. I received my Doctor of Podiatric Medicine Degree in 1985 from the Ohio College of Podiatric Medicine. The school is now under Kent State University in Ohio.
It is important to this Chapter in my Life becoming a Podiatrist, no not a Pediatrician, because of the extra effort my profession has put into being accepted as a “Specialist” Provider in America’s Public Healthcare System. You will see that the challenge to end discrimination against Podiatry began on returning to my Hometown, Mansfield Ohio. In 1985, my hometown’s main hospital, Mansfield General Hospital (now under the Ohio Healthcare System), was just being FORCED to allow Podiatrists into the Nation’s Hospital Based Healthcare System. With Title XVIII of the Social Security Act, the Definition of Physicians in Medicare, with primary ADMISSION privileges, are M.D., D.O. and D.P.Ms. Because of a discrepancy in Title XIX, podiatry was excluded. In Medicare, Podiatrists are included as Physicians, but in Medicaid, for the disadvantage citizens, Podiatry has not been included in the definition of Physician.
Hospitals see a lot of Medicaid patients and subsequently were forced to include Podiatrists on Hospital staffs. This occurred due to a Legislative change, after a ruling on the case, Dooley v. Barberton City Hospitals, beginning of the end of Discrimination against my profession, Podiatric Medicine. Later on the Board of the Podiatric Medical Association, we spent 30 years attempting to be included into the “Definition of Physicians ” in Title XIX at the National level. I have advocated for quality “Public Health”, even advocating for Elementary School Diabetes and Foot screenings.
After graduation from OCPM and a Surgical Residency program at Oxford Hospital in Philadelphia, Pennsylvania, I had helped my Father to establish the initial Podiatric Privileges for Mansfield General Hospital. Already involved in providing Quality Foot Healthcare to America’s citizens in Philadelphia, we established a FOUR tier privileging structure. This structure was based on “routine” care in hospital setting, up to Category IV level of privileges, that no local Podiatrist had obtained with multiple years of surgical training, required at the time. I want to CATEGORICALLY state that ALL levels of Podiatric Privileges REQUIRED the same foundational standards of care of ALL the other Medical Practitioners in the system. The Physician Specialities with Hospital Admission privileges are held to even higher standards of care. These physicians need to be able to COORDINATE the entire care in hospital settings. Reading and interpreting test is required, as well as the ability to discuss and communicate on consults from other “Specialists”. I believe the American Osteopathic Association will agree.
Let me restate the obvious, ALL Medical Practitioners have a foundational Standard of Care. This begins with “do no harm” from the Hippocratic oath, something that sadly seems to have been waived currently with “pandemics”. There are other foundational aspects, that if proven, they do represent Bad Medicine or legally defined “Malpractice”. These are some of the standard acceptable reasons established by Legislation and Legal precedents; failure to diagnose, failure to treat, improper diagnosis, improper treatment, failure to consult, failure to refer, as well as numerous other accepted standards. There are other standards for safe, effective and efficient Public Healthcare protections at many levels; from Local Hospital Bylaws, Rules, Regulations and as above, Privileging processes, next there are Local Laws, then State Associations and Legislators and finally Federal level regulations through CMS, other Federal Agencies and other Legislative Bills.
The anti-discriminatory Legislation at the Federal Level for different practitioner’s degrees was changed after Dooley v. Barberton, in Ohio and then legal precedent to the entire United States. This started the changing of Podiatry’s acceptance as the Foot Care “Specialist “ in the American Healthcare System and in the hospitals that provide the care. I was encouraged by my Father to stay active in ALL those levels of Podiatric Medicine, to provide safe, effective and efficient Podiatry care to Americans, and frankly the World, as the World looks to America for Podiatric Standards.
I served on virtually every Hospital Committee, including Infectious Disease, Wound care, Surgical, Records review and Disciplinary Committees. I also had some of the best attendance records on those committees and did the same all the way through the Executive Chairs of the Ohio Podiatric Medical Association Board of Trustees, until serving as the President of the Ohio Podiatric Medical Association. At the local level, I have also served for 30 years on the Raintree Pediatric Development Board, buying and converting homes, as to mainstream developmentally disabled clients from the Institutional setting at the Raintree facility into numerous Homes in local small communities. These homes were purchased through the aid of Government Grants and Client “Incomes”, utilizing the “Specialists” from Social Services. I think we owned 20+ “homes” when I relocated to Florida in October of 2020. The Government Legislations that govern this process are precise and closely regulated. There are Standards required here as well.
I am now retired and on Social Security Disability for psychiatric medical conditions and expected the Quality of Healthcare in Cape Coral to be of the quality my Father had been provided in Sarasota. Little did I know that Public Healthcare had dramatically changed since 2018 with the advent of Legislation to “improve” Healthcare in Florida. This was achieved Legislatively, making it attractive to physicians and physician groups, by decreasing Malpractice exposure and costs. The Legislators did this through Chapter 766 Florida Statutes.
This is the painful Chapter 766 of my Malpractice story. This chapter will not be dragged out here, although I am writing a legal suit against a Florida Healthcare provider and facility
Simply put, the Language of Chapter 766 is particularly difficult and expensive just to file a Malpractice claim. There are sections of Chapter 766 that state that the Claimant “must”, ad nauseam, list presuit requirements for the Injured, while all Defendants “musts”, occur after expensive and now difficult to obtain Legal Counsel for the Claimant. These requirements are entirely legislated to limit “frivolous” and unjustified Malpractice suits. The onerous, restrictive and in my case DANGEROUS rules, restrict the very access to legal counsel, even prior to acceptance of a Malpractice case. The Legislation disingenuously claims balance against the Defendant after the suit has been “approved” as legitimate by Investigation. These “balances” have failed to maintain a safe, effective and efficient Public Healthcare for Floridian citizens.
What has happened is that “Boutique” “Specialty” practices and groups are along every major road and in every “strip mall” in Cape Coral. You have all seen them; Dermatology, Plastic Surgery, Optical, Dental, Podiatry and SPINE CENTERS. These Businesses have migrated to Florida partially due to Chapter 766, as it Statutorily limits malpractice against their businesses and Providers. I found out about these lax regulations and the subsequent sloppy and dangerous oversight of Public Healthcare during my story of Malpractice and adjudication. I will not drag out my claim here. Needless to say, as a Podiatrist, active in all aspects of the Podiatric Profession and involved in the education and training of Ohio Podiatrists in Hospital settings, I KNOW the responsibility of knowing the value and using the knowledge of the other “specialists” in a patient’s Hospital care. That means studying the charts, being prepared to discuss fully the patient’s concerns regarding in-patient and long term out-patient care.
Every “Specialist” in the Public’s Healthcare has rules and laws that regulate behavior. In my foundational claim of Malpractice, one factor is that the records were not kept up to current CMS, Medicare and private Insurance standards, but I will also defer that Investigation to the experts at those agencies. Believe me, for 30 years at the OPMA (now OFAMA) we brought in Educational Documentation ,Coding and Fraud “specialist” Representatives from CMS to give lectures on COMPLIANCE. That compliance, along with the Bylaws of the Medical Groups, determine the Quality and Safety of Floridians Public Healthcare Systems. I do not know the answers to the modifications of Chapter 766 needed to return safe and effective Healthcare to Florida residents. In my case, it was the poor records, bad communications and lack of oversight that led to an untreated “Renal Mass” for almost a year.
The Osteopathic Surgeon failed to read the DIAGNOSTIC MRI report from the Radiologist “Specialist” after ORDERING that specific test AND separately a MRI reading. My physician continued to document and present her “interpretation” of the “specialist” report. I later found out that she NEVER read the report or then showed and explained the entire MRI reading or the multiple images taken with me. She ONLY focused on the images used in the procedures that she provides for her Joint Implant and Spine care Orthopedic group. I understand, as hospital admitting physicians, that the Osteopathic Professionals have a need, by law and oath to read and sign off on reports that they have ordered. The Osteopathic profession will agree. As a Podiatrist in the Hospital Setting, prior to Electronic Health records, I read and signed/dated EVERY report in the chart. With EHR the evidence was usually included in my daily notes from reading the new test results and new consults in the Medical records.
Imagine not reading the Vascular Report or the Culture and Sensitivity report with an infection.
In conclusion, my Osteopathic physician failed to read the report PRIOR to any “Affirmative Medical Intervention”. This IS the safeguard in the Chapter 766 Florida Statutes. This is the safeguard that EVERY Legal Firm in Florida has given up on even evaluating for. My denial of Legal Counsel was entirely based on the “stress and Cost/Benefit” return for the Legal Firms and attorneys. I was refused counsel by upwards of a dozen attorneys, most who had or still did ADVERTISE Malpractice counsel. I have three letters that I requested, stating that I most likely DO have a Malpractice claim, but they ALL recommended seeking other counsel PRIOR to the established “Statutes of Limitations” found in Chapter 766. The final nail in the coffin are the awards LIMITS found in Chapter 766. If one of an extremely limited list of “catastrophic” injury is present, then the firms will represent with the higher awards and the advertising that brings.
Losing a Kidney unnecessarily, worsened Scoliosis and Spinal Damage, a year of unnecessary physical pain and suffering, along with a future lifetime of worrying about metastasis and death. My psychiatric physician called it dealing with an “expiration” date. Regardless, mine is a Malpractice case that illustrates, with painful and permanent suffering, the danger of Chapter 766 Florida Statutes. My Malpractice case was agreed upon by the Legal experts I attempted to retain, but awards for a kidney is too low and therefore Florida citizens never receive any compensation for the FACTUAL Injuries they have incurred. I have studied the processes of the Florida Health Medical Quality Assurance Board and on review with a representative, I found that in no aspects of the mandated Investigative process is the patient involved, agreed upon settlement between the physician and FHMQA is kept confidential and the adjudication may even be excluded as evidence in a Claimant suit.
The Chapter 766 language states that Voluntary arbitration and mediation is MANDATED, but on precedent and basic established standards of care, it appears there is no need for further Investigation of this Malpractice claim. This is in accordance with Chapter 766.102 (2)(a) requiring an “affirmative medical intervention” must be the cause of the malpractice to require the complex, expensive and without counsel “Investigations” required presuit filing. When there is no “affirmative medical intervention” procedure performed to contest, then the presuit Investigation is statutorily not required. My case is simple. The malpractice CAN NOT be denied. If delay of mediation and adjudication is attempted to avoid responsibility of this claim, then increasing “Punitive” damages should be awarded in accordance. Delay should also include stronger penalties against the Plaintiffs if delay is being used to increase the Claimant’s cost and decrease the chance for Legal representation. The increasing Punitive award should be deposited into the Florida “Patient Compensation Fund”. I request no increase in my $1 for a punitive damage award.
My fear is that there are large numbers of these “Boutique Specialists” groups also following these sloppy, sometimes illegal documentation practices, (H.H.S. Will decide that)thereby endangering a large number of the aging Florida population.
Please assist me in quick adjudication of my case, as I am self-represented, living on a fixed SSDI income and my case will be unjustly closed, if expensive investigations or witnesses are required by the Defendant and my Malpractice claim will never be judiciously resolved.
Thank you for allowing me to Testify before the Florida Legislative Body. I will answer questions if desired.
Peter A. Wiggin, D.P.M.
ps. Attached is my extensive Curriculum Vitae with my contact information. No witnesses should be required to establish a Claimant Verdict in my case, although these individuals would easily compose letters of reference or opinions if requested