In its opinion filed on October 26, 2017, the Supreme Court of Florida (“Florida Supreme Court”) discussed and analyzed Amendment 7, which requires the disclosure of adverse medical incident reports to medical malpractice plaintiffs who request same, turning aside the medical malpractice defendant hospital’s argument that the requested information was not an adverse medical incident report and that the information requested was not discoverable because it was not kept in the ordinary course of business and was attorney work product or otherwise protected by the attorney client privilege.
The plaintiff in the Florida medical malpractice case sued a surgeon and the hospital where she had a laparoscopic cholecystectomy on May 9, 2011, for medical negligence. Her Florida medical malpractice lawsuit alleged that the defendant surgeon failed to identify the plaintiff’s common bile duct during the surgery, cut her common bile duct during the surgery, and failed to timely recognize that he had done so. The medical error was not discovered until several days later, after which the plaintiff was transferred to another hospital for emergency corrective surgery.
The plaintiff served on the defendants a Request to Produce, pursuant to article X, section 25 of the Florida Constitution, which is commonly referred to as Amendment 7, requesting a number of records relating to adverse medical incidents that occurred at the defendant hospital. The defendant hospital objected to providing the requested discovery, asserting that certain requested records did not relate to “adverse medical incidents,” were not “made or received in the course of business,” were protected by attorney-client privilege, and were protected as attorney work product.
The intermediate appellate court ultimately decided that the external reports obtained by the defendant hospital were not made or received in the course of business per Amendment 7’s requirements, and that they did not relate to an adverse medical incident. The plaintiff appealed to the Supreme Court of Florida.
On November 2, 2004, the citizens of Florida voted to amend the Florida Constitution, adding in part the “right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Art. X, § 25(a), Fla. Const.
Amendment 7 states:
(a) In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.
(b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.
(c) For purposes of this section, the following terms have the following meanings:
(1) The phrases “health care facility” and “health care provider” have the meaning given in general law related to a patient’s rights and responsibilities.
(2) The term “patient” means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.
(3) The phrase “adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.
(4) The phrase “have access to any records” means, in addition to any other procedure for producing such records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records which have been made publicly available by publication or on the Internet may be “provided” by reference to the location at which the records are publicly available.
The Florida Supreme Court had previously stated that the purpose of Amendment 7 was to do away with the legislative restrictions on a Florida patient’s access to a medical provider’s history of acts, neglects, or defaults because such history may be important to a patient. The Florida Supreme Court further stated, citing a lower appellate court’s opinion, “that Amendment 7 heralds a change in the public policy of this state to lift the shroud of privilege and confidentiality in order to foster disclosure of information that will allow patients to better determine from whom they should seek health care, evaluate the quality and fitness of health care providers currently rendering service to them, and allow them access to information gathered through the self-policing processes during the discovery period of litigation filed by injured patients or the estates of deceased patients against their health care providers. We have come to this conclusion because we are obliged to interpret and apply Amendment 7 in accord with the intention of the people of this state who enacted it, and we have done so. . . . Hence, what the Legislature has given through its enactments and the courts have enforced through their decisions, the people can take away through the amendment process to our state constitution. Moreover, what the people provide in their constitution, the Legislature and the courts may not take away through subsequent legislation or decision.”
The Florida Supreme Court stated that reading Amendment 7’s language as a whole, and taking into account the definition of an “adverse medical incident,” suggests that the newfound right to access “any record” under Amendment 7 relating to “any adverse medical incident” necessarily includes, but is not limited to, those adverse medical incident records required to be reported by state or federal law. The Florida Supreme Court held that Amendment 7’s application was not intended to be limited only to those adverse medical incident records previously protected by statute. The Florida Supreme Court held that as the plain language of the amendment mandates, it was aimed at eliminating all discovery restrictions on “any records . . . relating to any adverse medical incident.” Art. X, § 25(a), Fla. Const.
The Florida Supreme Court further held that the external peer review committee itself employed by the defendant hospital in this case constituted a “similar committee” as enunciated in the constitutional provision. The Florida Supreme Court explained that in looking to the plain language of Amendment 7, it contains no limitation on the definition of “adverse medical incidents” based on a health care facility’s statutory reporting obligations.
The Florida Supreme Court concluded that the committees specifically listed in article X, section 25(c)(3) of the Florida Constitution are not limited only to those required by a statutory obligation, and the phrase “similar committees” was intended to apply to both risk management committees similar to those specifically listed, and also to those beyond what are statutorily required of health care facilities, noting that the result asserted by the defendant hospital would provide a trap door through which hospitals could totally avoid their discovery obligations by outsourcing their adverse medical incident reporting to external, voluntary risk management committees separate from those required by the Florida statutory scheme.
Thus, the Florida Supreme Court held that based on the express language and the principles of constitutional analysis, the external peer review committee at issue in this case does qualify as a “similar committee” under Amendment 7.
The Florida Supreme Court noted that if the defendant hospital is statutorily required to maintain similar adverse medical incident records as the ones outsourced to the external peer review committee, then it is a logical conclusion that these sorts of reports are ones that are maintained in the ordinary course of business: part of a Florida hospital’s day-to-day business is recording and addressing adverse medical incidents that might arise in daily operations, and responding to these adverse incidents in a way that will not only improve the quality of care rendered, but also prepare the hospital for any potential litigation that may arise from such an incident.
The Florida Supreme Court held that the reports at issue in this case are the type that are “made or received in the course of business by a health care facility or provider.” Art. X, § 25(a), Fla. Const.
With regard to the defendant hospital’s argument that the external reports were protected from disclosure by attorney work product or attorney client privilege, the Florida Supreme Court held that there is no basis to conclude that opinions of counsel are involved, nor are communications between counsel and client presented. To the extent that these reports contain any work product at all, the defendant hospital’s external peer review reports are discoverable under Amendment 7’s broad reach.
Source Edwards v. Thomas, No. SC15-1893
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