Some types of personal injury cases are more difficult for the plaintiff because the defendant is in control of many of the records that will help prove the plaintiff’s case. In medical malpractice cases, the health care provider involved likely created and maintains the records of the incident.

Florida law provides certain privileges that protect the confidentiality of peer reviews conducted by medical review committees or the governing board of a hospital that are used by the committee or board in its decision-making process. Article X, § 25 of the Florida Constitution, known as “Amendment 7,” provides patients access to “records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.”

The Second District recently considered how these laws work together to determine if a medical malpractice plaintiff was entitled to the discovery of documents related to “attorney requested external peer review.” The plaintiff in Bartow HMA, LLC v. Edwards filed a medical malpractice case against the doctor who removed her gall bladder and the hospital, alleging the hospital was liable for the injuries caused by the doctor, nurses, and other hospital personnel when her common bile duct was severed during the surgery. Her claims against the hospital were based on vicarious liability, agency, apparent agency, negligent hiring, and non-delegable duty.

The plaintiff requested from the hospital all documents from the five years before her surgery relating to the investigation or review of the doctor’s care of any patient and all documents relating to the investigation or review of her treatment or care.

The hospital objected, arguing that not all of the requested records fell under Amendment 7 and that some of them were privileged. After a motion to compel, the hospital again made its objections and provided privilege logs. Among the documents the hospital claimed were privileged were certain reports the hospital claimed were related to attorney requested external peer review.

The trial court conducted a hearing and clarified that it had determined that the documents in the privilege log were privileged, but Amendment 7 preempted the privileges. The trial court then conducted an in camera inspection of the documents and ordered production of the documents related to peer review of adverse incidents involving the doctor. The hospital produced the documents relating to internal peer review, but it filed a petition for certiorari review of the order to the extent it required production of documents relating to external peer review.

The Second District first looked at whether the reports were created in the course of business. The reports had been generated after the hospital’s counsel had requested review of patient records by physicians with an external business. The request specifically stated that review was “to be done on an attorney client, work product and peer review privileged basis.” The hospital argued that the reports were requested for litigation purposes. The Second District noted that records that are created by an expert who has been retained for litigation purposes are not “made or received in the course of business.”

“Adverse medical incident” is a defined term under Amendment 7. The Second District focused on the portion of the definition regarding incidents that are reported to or reviewed by a health care facility committee, including peer review, quality assurance, and similar committees. The plaintiff argued this section of the definition applied to the external peer review reports. She argued the external review company functioned the same as a “committee” and that the external review was an attempt by the hospital to protect its peer review process from discovery.

The Second District did not accept the plaintiff’s argument, finding the external review company did not act as a committee performing routine review of events, but instead it had been engaged for an expert review of specific incidents in preparation for litigation. These documents included expert opinions obtained at the request of counsel. Additionally, the hospital had provided other documents related to internal peer review. The district court acknowledged that the result may have been different if there had not been an internal peer review.

Based on the above, the Second District found that the external peer review reports did not fall under Amendment 7. The trial court had already determined that the documents were privileged, so without the application of Amendment 7, the reports are protected from discovery. The Second District granted the petition for writ of certiorari and quashed the portions of the trial court order requiring production of the external peer review reports.

If you have been injured by the negligence of a healthcare provider, call the South Florida medical malpractice attorneys at Anidjar & Levine. Call us at 800-747-3733 to schedule your consultation.

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Filing Deadlines in Florida Medical Malpractice Cases – Woodward v. Olson

Waivers and Releases in Florida Medical Negligence Cases – Moody v. Lawnwood Medical Center