A state constitutional amendment letting patients check records on past mistakes by health care facilities and providers should include nursing homes and nurses, a lawyer argued Wednesday before the Florida Supreme Court.

The justices did not immediately rule in the lawsuit over the death of Marlene Gagnon. She had difficulty eating solid food and allegedly choked on coleslaw served to her against a doctor's orders at a West Palm Beach nursing home.

The woman's estate is appealing a lower court ruling that the "patients' right to know" amendment applies to neither nurses nor nursing homes.

The 4th District Court of Appeal's decision is based on too narrow a reading of the amendment and state law, said Rebecca Mercier-Vargas, the estate's attorney.

"Constitutions are living documents," Mercier-Vargas said. "They're not easily amended and they can't be construed to frustrate the will of the people."

She wants to use the amendment to obtain evidence for the suit including what she called "the smoking gun" — a statement by the nurse who tended Gagnon.

Thomas Valdez, a lawyer for the nursing home company, Tandem Healthcare Inc., urged the justices to uphold the 4th District's ruling.

It's based on language in the amendment that says it applies to health care "facilities" and "providers" and that those terms have the meanings given to them by "general law related to a patient's rights and responsibilities."

The appellate judges noted there is such a law and it applies only to hospitals, medical doctors, osteopaths and podiatrists.

A similar law covers nursing homes but refers to the rights of "residents" rather than "patients," the term used in the amendment, but Mercier-Vargas argued that's a distinction without a difference.

She also pointed out Florida's Agency for Health Care Administration interpreted the amendment as including nursing homes in a financial impact statement that accompanied the amendment.

"In fact, they thought they were going to need over $400,000 to respond to requests and four additional staff people, which is four times more staff and resources than they were going to need to respond to requests in hospitals," Mercier-Vargas said.

Some of the justices questioned whether a ruling in favor of the estate might apply to other health care providers and facilities such as dentists, old fashioned rest homes and adult day care centers, but Mercier-Vargas said none of those would be covered.

Justice Barbara Pariente asked Valdez how voters could know the amendment didn't include nursing homes if a sophisticated state agency came to the opposite conclusion.

"With due respect to AHCA, in my line of work I find ACHA makes mistakes all the time," Valdez responded.

Mercier-Vargas acknowledged a trial lawyers group that sponsored the amendment argued nursing homes weren't included, but she said the Supreme Court nevertheless approved the financial statement before voters adopted the amendment in 2004.

Only six of the seven justices heard the argument. Justice Kenneth Bell did not participate because he is resigning effective Oct. 1.

The Supreme Court in March ruled in a 4-3 opinion the amendment applied to records of past mistakes by health care facilities and providers, no matter how old they are. Hospitals had argued it should apply only to records created since the amendment was adopted. Bell dissented in that case.