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