Amendment 7 Broadens Again: Florida Supreme Court Tolls the Death Knell on Work Product Privilege and External Peer Review Records Concerning Adverse Medical Incidents

Defense Digest, Vol. 24, No. 1, March 2018

By Chanel A. Mosley, Esq.*

This article appeared in the January 9, 2018 issue of the Daily Business Review. 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

On October 26, 2017, the Florida Supreme Court rendered its opinion in Edwards v. Thomas, 229 So.3d 277 (Fla. Oct. 26, 2017) regarding the applicability of Article X, § 25 of the Florida Constitution, known as Amendment 7, to a health care facility’s or a provider’s external peer review records. This decision tolled the death knell for any assertion of work product privilege over records relating to adverse medical incidents, including the reports of an external peer review committee and attorney fact work product.

In Edwards, the patient underwent a laparoscopic cholecystectomy at Bartow Regional Medical Center, during which the surgeon clipped her common bile duct but failed to recognize that he had done so. The patient developed severe stomach pain during the post-operative period and ultimately required corrective surgery. In the medical negligence lawsuit that ensued, the patient served an Amendment 7 request on the hospital in which she sought the production of various records relating to adverse medical incidents that had occurred there. The hospital objected to the requested records. However, following several discovery hearings, it was ordered to produce not only the incident reports and internal peer review committee records relating to the adverse medical incident, but also specific reports generated in connection with an external peer review that was conducted at the request of the hospital’s attorney. The hospital petitioned the Second District Court of Appeals for writ of certiorari on the issue of the external peer review reports. The appellate court quashed the trial court’s order, holding that the external peer review records were not “made or received in the course of business” and, therefore, were not within the purview of Amendment 7. The patient then petitioned the Florida Supreme Court for review, seeking interpretation and construction of this constitutional provision.

The text of Amendment 7 provides, in pertinent part, that patients “[h]ave 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,” and it defines an adverse medical incident as “[m]edical 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…”

Additionally, the term “adverse medical incident” also includes “[i]ncidents 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 committee.”

In its October 26, 2017, opinion, the Florida Supreme Court embarked on a comprehensive review of the purpose and scope of Amendment 7. In doing so, it applied the principles of construction applicable to statutory interpretation, examining the plain and obvious meaning of the constitutional provision’s explicit language. Employing these principles, the court found that the right to access any record under Amendment 7 relating to any adverse medical incident necessarily includes, but is not limited to, not only those records previously protected under Florida’s licensing statutes, but also those records generated in conjunction with an external peer review. To interpret the scope of Amendment 7 any other way would subvert the inclusion of “including, but not limited to” in the constitutional provision’s text.

Noting that several courts across the state have broadly interpreted the constitutional right created by Amendment 7 as an absolute right intended to eliminate any and all restrictions on the discovery of any records relating to adverse medical incidents, the Supreme Court similarly confirmed that Amendment 7’s scope is not limited to only those records previously protected pursuant by statute. Rather, it liberally encompasses any records relating to any adverse medical incident, including external peer review records, because those documents are generated by a “similar committee,” as that phrase is contained within the plain text of the constitutional provision. Because Amendment 7 does not impose any limitations on the definition of “adverse medical incidents,” and noting that its content uses the word “any” repeatedly, the Supreme Court concluded that the committees specifically listed in the language of the constitutional provision encompass not only internal peer review committees and other statutorily-mandated committees, but also external peer review committees hired at the direction of a health care provider’s legal counsel. Additionally, the court held that attorney work product, which constitutes fact work product—meaning the factual information gathered in anticipation of litigation—is within Amendment 7’s reach.

In an ominous closing remark, the court referenced the issue of an attorney’s opinion work product and the attorney-client privilege as they relate to Amendment 7, but the court declined to address whether those categories of documents come within the purview of Amendment 7. Thus, it is yet to be seen whether the mental impressions, conclusions, opinions or legal theories of a health care provider’s legal counsel may be subject to discovery under an Amendment 7 request. Nevertheless, hospitals, health care providers and their counsel should proceed cautiously when memorializing such information in writing in the event our Florida courts reach this conclusion in the future.

*Chanel is an associate who works in our Orlando, Florida office. She can be reached at 407.420.4415 or camosley@mdwcg.com.

_{Defense Digest, Vol. 24, No. 1, March 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}