United States: Florida Supreme Court: Physicians' Peer Reviews Not Protected From Public Disclosure

Jerome Hoffman is a Partner in the Jacksonville office

HIGHLIGHTS:

  • The Florida Supreme Court has reversed a decision of the Florida Second District Court of Appeal and held that an analysis of a medical malpractice claim sent by an attorney to an external medical review company in anticipation of a lawsuit by a patient was not protected by the attorney work product privilege.
  • The state's high court ruled that the external peer review report was "fact work product" and was otherwise subject to disclosure under Article X, Section 25 of the Florida Constitution (the "Patient's Right to Know" Amendment, aka Amendment 7).
  • The court's decision has effectively eviscerated any possible means of protecting any physician peer review from public disclosure, even if the peer review is created at the express direction of an attorney solely for purposes of anticipated litigation.

In Edwards v. Thomas, a decision released on Oct. 26, 2017, the Florida Supreme Court reversed the decision of the Florida Second District Court of Appeal and held that an analysis of a medical malpractice claim sent by an attorney to an external medical review company, "M.D. Review," in anticipation of a lawsuit by Amber Edwards was not protected by the attorney work product privilege. The state's high court ruled that the external peer review report was "fact work product" and was otherwise subject to disclosure under Article X, Section 25 of the Florida Constitution (the "Patient's Right to Know" Amendment, aka Amendment 7).

Florida Supreme Court Decision

In Edwards, the Court held that: "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." Art. X, §25(a), Fla. Const." (emphasis original to opinion, not to the Constitution).

The Court found that an evaluation by an external peer review body selected by an outside attorney for purposes of evaluating the medical records of Edwards' surgery was a report of an "adverse medical incident" as defined by Article X, Section 25 because the external review body's report included an analysis of "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." Therefore, the external review body was a "similar committee."

The Court noted that to rule otherwise 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." It went on to declare that, "Furthermore, the dissent would have the adverse medical incident discovery obligations that the people of Florida chose to include in their state constitution circumvented, simply based on the identity of the person requesting the peer review reports. Under the dissent's view, any and all adverse medical incident reports, if requested by an attorney, rather than a hospital itself, would then be protected from discovery — thus rendering Amendment 7 a nullity."

The Court next found that the external peer review report requested by the attorney in anticipation of litigation was nevertheless "made or received in the course of business by a health care facility or provider" as defined in Article X, Section 25 because the 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." Then the Court concluded: "Thus, contrary to the dissent's assertion, maintaining records such as those produced by the external peer review committee would, in fact, be the type of reports that hospitals would maintain or receive in their course of business, even in the absence of any statutorily-mandated duty to do so."

Finally, the Court ruled that the external peer review report was not protected under the work product doctrine because to argue otherwise "ignores the state-wide precedent finding fact work product to be within Amendment 7's reach. Moreover, if this conclusion finds the records to be opinion work product, it conveniently ignores the requirement that opinion work product contain the attorney's mental impressions, conclusions, opinions, or theories — which is not the case with the records at issue here." It went on to state that, "If merely having an attorney request records following an adverse medical incident cloaks the facts with secrecy, the express constitutional right is emasculated and ultimately erased." Based on this reasoning the Court held that, "Therefore — here — to the extent that these reports contain any fact work product at all, we hold that [the hospital's] external peer review reports are discoverable under Amendment 7's broad reach."

The Dissent

Quoting the Second District Court of Appeal, the dissent pointed out that the "hospital's legal 'counsel requested the reports at issue for purposes of litigation' from a company called M.D. Review that 'does not perform the routine function of reviewing incidents for the [h]ospital when medical negligence or other events occur as specified in Amendment 7,' but rather 'provides an expert opinion on the standard of care on sporadic occasions when litigation is imminent.'" The dissent argued that such a report is "Work product prepared in anticipation of litigation" and is "the antithesis of the 'records made or received in the course of business' that fall within Amendment 7's ambit."

Finally, the dissent pointed out that in the process of approving Amendment 7 to appear on the ballot in 2004, the Court had made it clear that the language of the amendment would not abrogate the attorney work-product or attorney-client privileges, "Amendment 7's history underscores that it was not intended to destroy the work-product doctrine or the attorney-client privilege. Specifically, in approving Amendment 7 for placement on the ballot, this Court rejected the argument that Amendment 7 'would affect Florida Rule of Civil Procedure 1.280(c), which restricts the discovery of work product, including incident reports generated by health care providers and facilities . . . [and] infringes on the statutes and rules delineating the attorney-client privilege." Advisory Op. to Atty. Gen. re Patients' Right To Know About Adverse Med. Incidents, 880 So. 2d 617, 621 (Fla. 2004). In so doing, this Court held that 'the amendment does not expressly affect either rule 1.280(c) or the attorney-client privilege, and there is no evidence of any intent to do so.' Id."

Takeaways and Considerations

Earlier this year, in Charles v. S. Baptist Hosp. of Fla., Inc., 209 So. 3d 1199 (Fla. 2017), cert. denied, 2017 WL 2444641 (Oct. 2, 2017) the Court sidestepped the Supremacy Clause and ruled that the federal Patient Safety and Quality Improvement Act of 2005 (PSQIA) did not protect "Patient Safety Work Product" as defined by the federal law because such work product fell under the definition of a "report" of an "adverse medical incident" as defined by Article X, Section 25. The Court also found that the federal law was not intended by Congress to pre-empt state laws such as Amendment 7.

First with Charles and now Edwards, the Florida Supreme Court has effectively eviscerated any possible means of protecting any physician peer review from public disclosure, even if the peer review is created at the express direction of an attorney solely for purposes of anticipated litigation. In Edwards, the Court has, in essence, revoked any work product or attorney-client privilege protection such reports might have

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