NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BARTOW HMA, LLC d/b/a BARTOW )
REGIONAL MEDICAL CENTER, )
)
Petitioner, )
)
v. ) Case No. 2D14-3450
)
AMBER EDWARDS and LARRY )
THOMAS, M.D., )
)
Respondents. )
___________________________________ )
Opinion filed July 10, 2015.
Petition for Writ of Certiorari to the Circuit
Court for Polk County; Ellen S. Masters,
Judge.
Michael A. Petruccelli and Paul C. Buckley
of Fann & Petruccelli, P.A., Fort
Lauderdale, and Amy L. Dilday and Andrew
R. McCumber of McCumber, Daniels,
Buntz, Hartig & Puig, P.A., Tampa, for
Petitioner.
Kara Berard Rockenbach and Kristi
Bergemann Rothell of Methe &
Rockenbach, P.A., West Palm Beach, and
Karen E. Terry and Matthew K. Schwenke
of Searcy Denney Scarola Barnhart &
Shipley, P.A., West Palm Beach, for
Respondent Amber Edwards.
No appearance for Respondent Larry
Thomas, M.D.
SILBERMAN, Judge.
Bartow HMA, LLC, ("the Hospital"), seeks certiorari review of a discovery
order entered in a medical negligence lawsuit filed against the Hospital and Larry
Thomas, M.D., by Amber Edwards. Findings 15, 16, and 20 of section E of the order
require the Hospital to produce reports relating to "attorney requested external peer
review" pursuant to article X, section 25, Florida Constitution ("Amendment 7"). We
conclude that the order departs from the essential requirements of the law because
these reports do not fall within the ambit of Amendment 7 and are privileged. We
therefore grant the petition.
I. Facts
In her complaint, Edwards alleged that she was injured when Dr. Thomas
severed her common bile duct during gallbladder removal surgery. Edwards alleged
that the Hospital was liable for the injuries caused by Dr. Thomas and unnamed nurses
and hospital personnel pursuant to theories of agency, apparent agency, and vicarious
liability. Edwards also alleged that the Hospital was directly liable to her based on,
among other things, theories of negligent hiring and non-delegable duty.
Edwards served the Hospital with a request to produce that included a
request for all documents created within the five years before Edwards' surgery relating
to the Hospital's investigation or review of Dr. Thomas's care and treatment of any
patient. Edwards also requested all documents pertaining to the Hospital's investigation
or review of her care and treatment. Edwards cited to Amendment 7 as authorization
for this requested discovery.
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The Hospital filed a response in which it asserted that "Amendment 7 only
provides patients a right to access to records made or received in the course of
business by a health care facility or a health care provider relating to adverse medical
incidents." The Hospital claimed that some of the requested records did not fall within
these parameters and that many of the documents were protected from discovery by
applicable privileges. Edwards filed a motion to compel better responses. The court
entered an order overruling certain objections and sustaining others.
The Hospital filed further responses which essentially reiterated the same
objections and attached privilege logs. In Privilege Log B at 15, 16, and 20, the Hospital
challenged specific reports "relating to attorney requested external peer review" and
asserted that they were privileged. Edwards responded by filing a motion for rule to
show cause or for an in camera inspection.
The court conducted a hearing on the motion at which it clarified its prior
ruling on the Hospital's objections. The court explained that it had already determined
that the documents in the Hospital's privilege log were privileged. But it had also
concluded that Amendment 7 preempted the privileges so that any documents relating
to adverse medical incidents were discoverable. The court agreed to conduct an in
camera inspection to determine if any of the documents in the privilege logs did not fall
within the ambit of Amendment 7.
After the in camera inspection, the court entered the order that is the
subject of the Hospital's certiorari petition. In the order, the court required the
production of all documents related to the Hospital's peer review of adverse medical
incidents involving Dr. Thomas including the external peer review reports listed in
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Privilege Log B at 15, 16, and 20. The Hospital provided Edwards the documents
relating to the internal peer review process but filed this petition for certiorari challenging
the portion of the order requiring production of the external peer review reports.
II. Analysis
In order to be entitled to certiorari review, the Hospital must establish that
the circuit court's order (1) causes it material injury for which there is no adequate
remedy on direct appeal and (2) departs from the essential requirements of the law.
See Bartow HMA, LLC v. Kirkland, 126 So. 3d 1247, 1251-52 (Fla. 2d DCA 2013). The
first component is established when a petitioner is ordered to produce documents that
are statutorily privileged. See id. at 1252; Lakeland Reg'l Med. Ctr. v. Neely ex rel.
Neely, 8 So. 3d 1268, 1269 (Fla. 2d DCA 2009). The issue for our review is whether
the circuit court's order departed from the essential requirements of the law.
The dispositive question here is whether the external peer review reports
fall within the ambit of Amendment 7. See Kirkland, 126 So. 3d at 1254. If the external
peer review reports do not fall within the ambit of Amendment 7, they are protected from
discovery because the circuit court has already determined that they are privileged. If
the external peer review reports do fall within the ambit of Amendment 7, it will be
necessary to determine whether the applicable privileges are preempted by Amendment
7. See id. As discussed below, we conclude that the requested reports are not within
the ambit of Amendment 7.
A. History of Amendment 7
Florida law contains statutory privileges that provide for the confidentiality
of health care facility or provider peer review as conducted by a medical review
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committee or governing board of licensed hospital facilities. See §§ 395.0191(8),
395.0193(8), 766.101(5), Fla. Stat. (2010); W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So.
3d 1, 9-10 (Fla. 2012). Those provisions protect "any 'document considered by the
committee or board as part of its decision-making process.' " W. Fla. Reg'l, 79 So. 3d at
10 (quoting Cruger v. Love, 599 So. 2d 111, 114 (Fla. 1992)).
Amendment 7 was approved by Florida voters after a general election in
November 2004. Kirkland, 126 So. 3d at 1252. It preempts the statutory discovery
protections for the peer review process, id. at 1253, by providing patients a right of
"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." Art. X, § 25(a). The issue
of whether it preempts certain common law privileges is not settled. See Kirkland, 126
So. 3d at 1253.
B. Application of Amendment 7
1. Made or Received in the Course of Business
Among other things, the Hospital argues that the external peer review
reports do not fall within the ambit of Amendment 7 because they were not "made or
received in the course of business." The documents at issue are each entitled "Peer
Review Report." They were generated in response to letters sent by the Hospital's
counsel to the director of client services at a business called "M.D. Review." On behalf
of the Hospital, counsel requested
that M.D. Review conduct an external peer review
concerning the medical care and treatment rendered by one
of its physicians [name and specialty], to [number] different
patients at the facility. We are requesting this external peer
review investigation to be done on an attorney client, work
product and peer review privileged basis.
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Counsel included medical records from certain specified patients. The Hospital has
consistently maintained that counsel requested the reports at issue for purposes of
litigation.
Each external peer review report was prepared by a physician, and each
report references a separate patient. Each report provides a "Case Overview" in which
the reviewing physician describes the patient's complaints and details the course of
diagnosis and treatment. The next section is "Findings of Fact" which is a chart noting
details regarding each test or treatment administered. Then there is a section entitled
"Discussion" in which the reviewing physician conducts an in-depth critique of the
subject physician's course of diagnosis and treatment. Each report finishes with a
"Conclusion" indicating whether the reviewing physician believes the standard of care
was met.
To determine whether these external peer review reports fall within the
ambit of Amendment 7, we are guided by some general principles of statutory
construction. The polestar of our analysis is legislative intent. W. Fla. Reg'l, 79 So. 3d
at 8. And to discern intent, we must look to "the plain and obvious meaning of the
statute's text." Id. at 9. If that language is sufficiently clear and unambiguous to convey
an unequivocal meaning, then we will apply that meaning without considering any
further rules of statutory construction. Id.
"Course of business" is not defined in Amendment 7, but it has a plain and
obvious meaning. Indeed, similar language has been discussed in cases involving
section 90.803(6)(a), Florida Statutes (2003), which sets forth a hearsay exception for
records "kept in the ordinary course of a regularly conducted business activity." Some
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records are kept in the course of a regularly conducted business activity if they are kept
pursuant to a statutorily mandated duty. See Yisrael v. State, 993 So. 2d 952, 958 (Fla.
2008). While Florida hospitals are statutorily required to establish internal risk
management programs to investigate and respond to adverse incidents,1 they are not
statutorily required to retain external experts to evaluate adverse medical incidents to
determine whether the standard of care was met. Here, the external peer review
reports were made for purposes of litigation rather than to fulfill a statutory duty.
Other records may be kept in the course of business even in the absence
of a statutory duty. See, e.g., Bank of N.Y. v. Calloway, 157 So. 3d 1064, 1071 (Fla. 4th
DCA 2015) ("Businesses rely upon their records 'in the conduct of [their] daily affairs'
and 'customarily check [them] for correctness during the course of the business
activities.' " (quoting Charles W. Ehrhardt, Florida Evidence § 803.6 (2014 ed.))).
Records created by an expert retained for purposes of litigation are not kept in the
course of regularly conducted business activity. See Brown v. Int'l Paper Co., 710 So.
2d 666, 668 (Fla. 2d DCA 1998) (holding that a handwriting analyst's report created
during the investigation of an allegedly forged purchase requisition form was not made
in the course of business). Accordingly, the external peer review reports were not
"made or received in the course of business" under Amendment 7.
2. Adverse Medical Incident
Unlike the phrase, "made or received in the course of business," the term
"adverse medical incident" is defined in Amendment 7.
1
See §§ 395.0193, .0197, Fla. Stat. (2010).
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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
committee.
Art. X, § 25(c)(3) (emphasis added).
Edwards argues that the external peer review reports relate to adverse
medical incidents under this definition because they pertain to "incidents that are
reported to or reviewed by any health care facility peer review . . . or similar committee."
Edwards acknowledges that M.D. Review is not a "committee" but asserts that it
functions as the equivalent and notes that the reports are each entitled "Peer Review
Report." Edwards claims that the retention of M.D. Review by counsel is an attempt by
the Hospital to outsource the peer review process and cloak it with protection from
discovery under Amendment 7.
We cannot agree that M.D. Review functions as the equivalent of a health
care facility peer review. M.D. Review does not perform the routine function of
reviewing incidents for the Hospital when medical negligence or other events occur as
specified in Amendment 7. Instead, it provides an expert opinion on the standard of
care on sporadic occasions when litigation is imminent. See Neely, 8 So. 3d at 1270
n.2 (discussing Amendment 7 and noting the distinction between incident reports
prepared in accordance with Florida Statutes and those "documents prepared or
produced at the specific request of the client's attorney for use in litigation"). While the
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documents at issue are each entitled "Peer Review Report," it is the substance of the
reports and their context that determines whether they are within the ambit of
Amendment 7. Although the reports address adverse medical incidents, the reports
contain expert opinions requested by counsel. The limited record before us does not
suggest that the reports were obtained as part of the Hospital's regular peer review
process.
We are also not persuaded that the use of external peer review under
these circumstances is an attempt to circumvent the disclosure requirements of
Amendment 7. The Hospital has already satisfied those requirements by providing
access to numerous documents pertaining to internal adverse incident reporting and
peer review. Of course, our result may have been different if the Hospital had not
conducted an internal peer review of the incidents in question.
3. Conclusion on the Application of Amendment 7
Thus, we conclude that the external peer review reports do not fall within
the ambit of Amendment 7 because they were not "made or received in the course of
business." Because the circuit court has already determined that the reports are
privileged, they are protected from discovery.
III. Preemption of Common Law Privileges
In light of our conclusion that the reports do not fall within the ambit of
Amendment 7, it is not necessary to fully analyze Edwards' alternate argument that
Amendment 7 preempts the common law attorney-client and work-product privileges.
That said, the law on the issue as it pertains to the common-law work-product and
attorney-client privileges is still developing. Florida courts have determined that the
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privilege for fact work-product does not survive Amendment 7. See Kirkland, 126 So.
3d at 1253; Neely, 8 So. 3d at 1270; Acevedo v. Doctors Hosp., Inc., 68 So. 3d 949,
953 (Fla. 3d DCA 2011); Fla. Eye Clinic, P.A. v. Gmach, 14 So. 3d 1044, 1048 (Fla. 5th
DCA 2009). But courts have distinguished the privilege for opinion work-product and
ruled that it is not preempted by Amendment 7. See Kirkland, 126 So. 3d at 1253;
Acevedo, 68 So. 3d at 953; Gmach, 14 So. 3d at 1050. And while no appellate court
has ruled on the issue of whether Amendment 7 preempts the attorney-client privilege,
this court has noted that there has been a suggestion to that effect. See Kirkland, 126
So. 3d at 1253; Morton Plant Hosp. Ass'n, Inc. v. Shahbas ex rel. Shahbas, 960 So. 2d
820, 825 (Fla. 2d DCA 2007).
IV. Conclusion
Because the external peer review reports do not fall within the ambit of
Amendment 7 and the circuit court has ruled that they are privileged, it was a departure
from the essential requirements of the law to order their production. Accordingly, we
grant the Hospital's petition for writ of certiorari and quash findings 15, 16, and 20 of
section E of the circuit court's order.
Petition granted; order quashed in part.
KELLY and BLACK, JJ., Concur.
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