Since 2004, the Florida Supreme Court has examined a series of objections raised by defendants to avoid producing records of “adverse medical incidents.” In each case, the Court has found that Amendment 7 to the Florida Constitution, which grants broad rights of record access to medical patients, abrogates any Florida statute that would otherwise prohibit discovery, including statutes that previously exempted from discovery any records of investigations, proceedings, and/or peer review panels. Undaunted, defendants have continued to object to Amendment 7 discovery requests, using new and refined theories in response to each court decision. On October 26, 2017, the Florida Supreme Court appeared to have put an end to many of these creative defense tactics in Edwards v. Thomas.
History of Amendment 7
In 2004, the citizens of Florida voted to amend the Florida Constitution to allow nearly unfettered access to records of “adverse medical incidents.” This amendment, commonly referred to as Amendment 7, entitles any patient to records related to a health care facility’s “medical negligence, intentional misconduct, and any other act, neglect, or default that caused or could have caused injury to or death of a patient.” The stated purpose of the amendment was to “lift the shroud of secrecy from records of adverse medical incidents and make them widely available” because such records “may be important to a patient.” Although a lawsuit does not need to be filed to access these records, the issue seems particularly germane in medical negligence actions.
Before Amendment 7, Florida statutory law prohibited discovery of records of adverse medical incidents, which gave defendant hospitals a distinct advantage over medical negligence plaintiffs. These records tend to shed light on what a defendant hospital knew about the qualifications of attending physicians, the adequacy of its policies and procedures, and its own analysis of the particular medical incident at issue. After Amendment 7’s enactment, extensive litigation has sought to define the amendment’s scope, primarily with regard to what health care facilities can withhold from requesting patients, culminating in the opinion in Edwards v. Thomas.
Florida Supreme Court’s Decision in Edwards v. Thomas
In Edwards v. Thomas, the Florida Supreme Court was asked to decide if records from external peer review reports are discoverable under Amendment 7, and what it means for documents to be “made or received in the course of business.” The defendant hospital had refused to produce external peer review reports at issue, maintaining “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 opinion work product.”
The trial court granted plaintiff’s motion to compel the defendant hospital to produce specific reports listed in the hospital’s privilege log “relating to attorney requested external peer review.” However, the Second District Court of Appeal quashed, in part, the trial court’s order on the basis that the external reports 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. Specifically, the Second District Court of Appeal determined that the documents were not “made or received in the course of business” because the records were created by an expert retained for the purposes of litigation. The Second District also stated that the report did not relate to adverse medical incidents because the third party’s review was not part of the defendant hospital’s regular or routine peer review process.
In its analysis, the Florida Supreme Court focused on the text of Amendment 7, which states in full:
(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.
Art. X, § 25, Fla. Const. (emphasis added).
The Court found the language of Amendment 7 clear and unambiguous, and that it “conveys a clear and definite meaning.” In light of this, the Court was obligated to apply the unequivocal meaning of the plain language. The Court noted that the amendment provides for no limitation on the types of adverse medical incident reports and no qualifying provision that restricts the scope of discoverable records to those previously prohibited by the Legislature. In other words, the Court found that the amendment’s scope was not restricted to adverse medical incident records previously protected by statute: “The prior statutory protections served only as an explanation for Amendment 7’s genesis, rather than a limitation on the amendment’s broad application. Moreover, in the cases since Buster, many courts have expanded upon Buster’s explanation by interpreting the amendment’s right as an absolute right to review adverse medical incident reports. Therefore, as the plain language of the amendment mandates, we hold that Amendment 7 was aimed at eliminating all discovery restrictions on ‘any records . . . relating to any adverse medical incident.’” (emphasis in original).
I. External Peer Review Reports
The first issue the Supreme Court decided was whether external peer review reports fall within the purview of Amendment 7 and whether external peer review committees can be a “similar committee” as articulated in the constitutional provision. The Court considered whether there are differences between documents prepared in compliance with Florida statutes and those “documents prepared or produced at the specific request of the defendant hospital’s attorney for use in litigation.” However, as stated previously, the Court recognized the clear and broad language of the amendment (i.e., “any records” and “any adverse medical incident”), and concluded that its scope went beyond adverse medical incident records previously protected by statute. Thus, the Court determined that external peer review committees “cannot logically be excluded from Amendment 7’s application simply because they are in addition to the base-level, statutorily-required risk management committees. Such a result would be directly contrary to the intent and express words of Florida voters to have greater access to adverse medical incident records than they did before the passage of Amendment 7.” The Court explained that a contrary conclusion would allow defendants to avoid their obligations under Amendment 7 by simply outsourcing adverse medical incident reporting to third party committees separate from those required by Florida law.
II.“In the Course of Business” Requirement
Amendment 7 provides explicit definitions of its major terms, except for “in the course of business.” Until the Edwards opinion, courts had not interpreted the term, either. The defendant hospital in Edwards contended that the external peer review reports at issue were not created “in the course of business” because they were not drafted in accordance with the defendant hospital’s statutory documentation and reporting requirements, but rather were requested in anticipation of litigation.
However, the Florida Supreme Court disagreed, finding that just because the defendant hospital chose to outsource its peer review needs did not exempt third party reports from the scope of Amendment 7. If that were the case, a hospital could simply outsource all of its peer review and thereby avoid producing any records. Moreover, the records produced by an external peer review committee are the same category of reports that hospitals otherwise would maintain or receive in their course of business, even in the absence of any statutorily-mandated duty to do so.
III. Fact Work Product Privilege
The last issue the Court considered was whether the external peer review reports at issue were protected from discovery under the fact work product privilege. Again, the Court considered the plain language of Amendment 7 and its goal of providing a broad right to know about adverse medical incidents. The Court concluded that Amendment 7 nullifies any fact work product privilege that may have attached to adverse medical incident reports. Otherwise, the amendment could be rendered meaningless merely by having an attorney request records following an adverse medical incident.
Future of Amendment 7 Challenges
In Edwards, the Florida Supreme Court has severely limited potential objections to Amendment 7 discovery requests. However, the Edwards decision did not address opinion work product or the attorney-client privilege. Given the high unlikelihood of overruling good-faith opinion-word product or attorney-client privileges, defendants may find that no other objections would be valid with regard to records of “adverse medical incidents.”