The Florida Supreme Court Finds External Peer Review Reports Are Discoverable Under Amendment 7
By: Kimberly Kanoff Berman, Esq.
In a 5-2 decision, the Florida Supreme Court has quashed the Second District Court of Appeal's decision on the production of external peer review reports pursuant to Amendment 7 in Bartow HMA, LLC v. Edwards, 175 So. 3d 820 (Fla. 2d DCA 2015). The Court held that external peer review reports are discoverable under Amendment 7. See Edwards v. Thomas, 229 So. 3d 277 (Fla. 2017).
According to the Court, Article X, section 25 of the Florida Constitution, ("Amendment 7") was enacted "to do away with the legislative restrictions on a Florida patient's access to a medical provider's 'history of acts, neglects, or defaults." The Court had recently stated that such access "may be important to a patient." Amendment 7 provides that:
(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.
(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.
(Emphasis added). The Court recognized the vast breadth of the scope of Amendment 7 with the Legislature's inclusion of "any records" relating to "any adverse medical incident," noting that this language expressed a clear intent to abrogate any and all previously-existing restrictions on the discoverability of these types of records.
After holding "that Amendment 7 was aimed at eliminating all discovery restrictions on "any records …relating to any adverse medical incident," the Court proceeded to hold that the external peer review committee at issue in the case qualified as a "similar committee" under Amendment 7. Therefore, the documents created by the external peer review committee are discoverable.
The Court also analyzed the "in the course of business" requirement of Amendment 7. The Court rejected the Second District's contention that the records were not kept in the ordinary course of business because they were created by an expert retained in anticipation of litigation. Notably, the Court determined that the mere fact that the hospital voluntarily outsourced its peer review needs did not place the records outside or beyond the scope of Amendment 7's reach. The Court stated that "any contrary conclusion would provide hospitals with a blueprint as to the method to evade their constitutionally-mandated discovery requirements." Thus, the Court concluded that the reports at issue are of the type that are "made or received in the course of business by a health care facility or provider."
Finally, the Court declined to address the issues of opinion work product or attorney client privilege as it relates to Amendment 7. This was because the record before the Court did not indicate that there were opinions of counsel involved, nor were any communications between counsel and client presented. The Court, did however, note that to the extent the reports contained any fact work product at all, then it held that the hospital's external peer review reports are discoverable under Amendment 7's broad reach. "Fact" work product is factual information which pertains to the client's case and is prepared or gathered in connection therewith; whereas "opinion" work product is the attorney's mental impressions, conclusions, opinions, or theories concerning his client's case.
Justice C. Alan Lawson dissented, and Justice Canady concurred with the dissent. Justice Lawson dissented on the basis that the plain language of the Florida Constitution required the Court to approve the Second District's decision shielding expert reports prepared in anticipation of litigation--rather than in the course of business--from disclosure pursuant to Amendment 7. He noted that in this case, the hospital's legal "counsel" requested the reports for purposes of litigation in order to obtain an expert opinion on the standard of care on sporadic occasions when litigation is imminent. These expert opinions were not part of the regular peer review process. Therefore, Justice Lawson concluded that "the expert reports at issue--prepared at the request of the hospital's counsel, outside of the ordinary peer review process, in anticipation of imminent litigation--are not "records made or received in the course of business" subject to disclosure pursuant to Amendment 7.
The case arose from a medical negligence action against a hospital and a physician, who allegedly improperly performed gall bladder surgery on a patient. During the course of litigation, the patient requested a number of records relating to adverse medical incidents that occurred at the hospital. The hospital objected, 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." After the trial court twice ordered the hospital to produce the records, the hospital provided the patient with its internal peer review documents. The patient then petitioned to the Second District, challenging the trial court's order that required the production of the external peer review reports. The Second District granted the petition and 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." The patient petitioned to the Florida Supreme Court to review the Second District's decision based on its express construction of a constitutional provision--Amendment 7. The Florida Supreme Court quashed the Second District's decision.