Amber Edwards v. Larry D. Thomas, M.D. , 229 So. 3d 277 ( 2017 )

Supreme Court of Florida
____________
No. SC15-1893
____________
AMBER EDWARDS,
Petitioner,
vs.
LARRY D. THOMAS, M.D., et al.,
Respondents.
[October 26, 2017]
LEWIS, J.
On November 2, 2004, the citizens of Florida voted to amend their
constitution, adding in part the “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.” Art. X, § 25(a), Fla. Const. This language was
tested in the decision of the Second District Court of Appeal in Bartow HMA, LLC
v. Edwards, 175 So. 3d 820 (Fla. 2d DCA 2015). Because the district court
expressly construed a provision of the Florida Constitution, this Court has
jurisdiction to review the decision. See art. V, § 3(b)(3), Fla. Const. We accept
that jurisdiction and analyze the significance of that constitutional provision in this
case.
FACTUAL AND PROCEDURAL BACKGROUND
While in Florida, Amber Edwards developed stomach pain and was
diagnosed with having gallstones. A laparoscopic cholecystectomy was scheduled
and performed at Bartow Regional Medical Center (Bartow) on May 9, 2011.
Bartow assigned Dr. Larry D. Thomas, M.D., to perform the surgery. During the
procedure, Thomas failed to identify Edwards’s common bile duct, cut her
common bile duct during surgery, and failed to timely recognize that he had done
so. After suffering from severe stomach pain for multiple days post-operation,
Edwards returned to Bartow’s emergency room, where Thomas’s error was
discovered. Upon discovering the severed common bile duct, Edwards was
transferred to Tampa General Hospital for emergency corrective surgery.
Edwards ultimately sued Bartow and Thomas for medical negligence,
including negligent hiring and retention. Edwards served a Request to Produce on
Bartow on July 30, 2013, pursuant to article X, section 25 of the Florida
Constitution, which is commonly referred to as Amendment 7, requesting a
number of records relating to adverse medical incidents that occurred at Bartow.
Bartow objected to the requested discovery, maintaining “that certain requested
records did not relate to ‘adverse medical incidents,’ were not ‘made or received in
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the course of business,’ were protected by attorney-client privilege, and were
protected as opinion work product.” Pet’r’s Br. 3-4. Edwards then filed a motion
to compel Bartow to file better responses, which the trial court granted, and Bartow
again attempted to frustrate compliance with that court order by asserting the same
objections and attaching privilege logs.
In Privilege Log B at 15, 16, and 20, [Bartow] 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 [Bartow’s] objections. The court
explained that it had already determined that the documents in
[Bartow’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 [an] order that
. . . required the production of all documents related to [Bartow’s]
peer review of adverse medical incidents involving Dr. Thomas
including the external peer review reports listed in Privilege Log B at
15, 16, and 20.
Edwards, 175 So. 3d at 823.
After being ordered on two occasions to produce the redacted documents
that Edwards requested, Bartow then only provided Edwards with its internal peer
review documents and filed a petition for writ of certiorari in the Second District
Court of Appeal challenging the trial court’s order requiring the production of the
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external peer review reports at issue, which had been reviewed by the external
company, M.D. Review. See id.
The Second District granted Bartow’s 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.” Id. at 824-26. Specifically, the district
court examined the meaning of “made or received in the course of business” and
concluded that because records created by an expert retained for the purposes of
any litigation are not kept in the regular course of business, the external peer
review reports were not “made or received in the course of business” for the
purposes of Amendment 7. Id. at 824-25. Moreover, the Second District, in
addressing whether the reports at issue related to adverse medical incidents,
reasoned that M.D. Review does not perform a routine function of reviewing all
adverse medical incidents for Bartow when medical negligence or other events
occur as specified in Amendment 7. Id. at 825. The peer review provided an
expert opinion on the standards of care from time to time when requested on
sporadic occasions when litigation appeared to be imminent. Id. at 825-26. Thus,
the court concluded that the reports at issue were not part of Bartow’s regular or
routine peer review process and, accordingly, did not fall within the ambit of
Amendment 7. Id. at 826. Since the trial court had previously determined that
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these reports were privileged, the Second District concluded that they were
protected from discovery. Id.
Given its conclusion, the Second District did not fully address Edwards’s
argument that “Amendment 7 preempts the common law attorney-client and work-
product privileges.” Id. It did, however, briefly note that, “while no appellate
court has ruled on the issue of whether Amendment 7 preempts the attorney-client
privilege, [the Second District] has noted that there has been a suggestion to that
effect.” Id. (citing Bartow HMA, LLC v. Kirkland, 126 So. 3d 1247, 1253 (Fla. 2d
DCA 2013); Morton Plant Hosp. Ass’n v. Shahbas ex rel. Shahbas, 960 So. 2d
820, 825 (Fla. 2d DCA 2007)).
Edwards petitioned this Court to review the Second District’s decision based
on its express construction of a constitutional provision.1 This review follows.
Amendment 7
The language of article X, section 25 of the Florida Constitution states in
full:
(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.
1. Edwards also petitioned this Court for review, alleging that the Second
District’s decision below conflicts with the decision of the Fifth District in Florida
Eye Clinic, P.A. v. Gmach, 14 So. 3d 1044 (Fla. 5th DCA 2009). See art. V, §
3(b)(3), Fla. Const.
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(b) In providing such access, the identity of patients involved
in the incidents shall not be disclosed, and any privacy restrictions
imposed by federal law shall be maintained.
(c) For purposes of this section, the following terms have the
following meanings:
(1) The phrases “health care facility” and “health care
provider” have the meaning given in general law related to a patient’s
rights and responsibilities.
(2) The term “patient” means an individual who has sought, is
seeking, is undergoing, or has undergone care or treatment in a health
care facility or by a health care provider.
(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.
(4) The phrase “have access to any records” means, in addition
to any other procedure for producing such records provided by general
law, making the records available for inspection and copying upon
formal or informal request by the patient or a representative of the
patient, provided that current records which have been made publicly
available by publication or on the Internet may be “provided” by
reference to the location at which the records are publicly available.
Art. X, § 25, Fla. Const. (emphasis added). We recently explained that “the
purpose of Amendment 7 ‘was to do away with the legislative restrictions on a
Florida patient’s access to a medical provider’s “history of acts, neglects, or
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defaults” because such history “may be important to a patient.” ’ ” Charles v. S.
Baptist Hosp. of Fla., Inc., 209 So. 3d 1199, 1204 (Fla. 2017) (quoting Fla. Hosp.
Waterman, Inc. v. Buster (Buster), 984 So. 2d 478, 488 (Fla. 2008)) cert. denied,
2017 WL 2444641 (Oct. 2, 2017).2
Moreover, we have also previously discussed the impact of Amendment 7’s
passage, relying on Judge Sawaya’s concluding comments in Florida Hospital
Waterman, Inc. v. Buster (Buster II), 932 So. 2d 344 (Fla. 5th DCA 2006):
We believe that Amendment 7 heralds a change in the public
policy of this state to lift the shroud of privilege and confidentiality in
order to foster disclosure of information that will allow patients to
2. Indeed, Amendment 7’s creation was spurred by the citizens’ frustration
with the longstanding legislative protection of the medical community with regard
to medical malpractice.
Viewed from a historical perspective, Amendment 7 arose from
a decades-long battle between doctors, insurance companies, and tort
reformers on the one hand, and trial lawyers, patients’ rights
advocates, and civil justice proponents on the other, over tort reform
legislation and efforts by the medical-insurance complex to curtail, if
not eliminate, medical malpractice claims entirely. Stoked, in part, by
a well-coordinated campaign carried out by Floridians for Patient
Protection, its passage came to symbolize the public’s long-simmering
frustration over a perceived “protect our own” mentality perpetuated
by the medical profession’s efforts to shield from public scrutiny even
the most dangerous doctors and hospitals. In the public’s view,
allowing the medical profession to continue to monitor itself, while
hiding behind a veil of secrecy, had over time become like the
proverbial fox guarding the hen house.
J.B. Harris, Riding the Red Rocket: Amendment 7 and the End to Discovery
Immunity of Adverse Medical Incidents in the State of Florida, 83 Fla. B.J. 20, 20
(2009) (footnotes omitted).
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better determine from whom they should seek health care, evaluate
the quality and fitness of health care providers currently rendering
service to them, and allow them access to information gathered
through the self-policing processes during the discovery period of
litigation filed by injured patients or the estates of deceased patients
against their health care providers. We have come to this conclusion
because we are obliged to interpret and apply Amendment 7 in accord
with the intention of the people of this state who enacted it, and we
have done so. . . .
Hence, what the Legislature has given through its enactments
and the courts have enforced through their decisions, the people can
take away through the amendment process to our state constitution.
Moreover, what the people provide in their constitution, the
Legislature and the courts may not take away through subsequent
legislation or decision.
Buster, 984 So. 2d at 494 (quoting Buster II, 932 So. 2d at 355-56). Despite Judge
Sawaya’s wise words about Florida’s constitutional amendment process, we knew
from the outset that attempts would be made to whittle away at Amendment 7’s
broad scope, thus attempting to deprive the citizens of Florida of the rights they
specifically voted to include in their state constitution.3
3. Indeed, legal commentators have anticipated and discussed attempts to
circumvent Amendment 7:
[G]oing forward, the two most significant challenges to Amendment 7
will remain 1) attempts by health care providers and facilities to limit
through assertions of the attorney-client privilege, or work product
doctrine, the operation of the amendment in response to discovery
requests; and 2) charges of federal preemption.
Regarding the first challenge, in an effort to expand the reach of
both attorney-client and work product protections, so as to restrict the
operation of the amendment, risk managers have been instructing
health care providers and facilities throughout the state how to
immunize from discovery minutes, records, reports, and other
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ANALYSIS
Amendment 7’s Scope
We must first determine the intended scope of Amendment 7’s reach. The
Second District asserts, and Bartow naturally agrees, that Amendment 7 was only
intended to abrogate the specific statutory limitations on discovery of adverse
medical incidents that were in place prior to the amendment’s passage in 2004.
Edwards, 175 So. 3d at 824. Edwards, on the other hand, maintains that the intent
of the Florida voters was to do away with all limitations on the discovery of
adverse medical incidents. To properly address this issue, we look to both the
language of the provision itself and the manner in which courts across the State of
Florida have interpreted and applied Amendment 7.
Statutory and constitutional construction are questions of law
subject to a de novo review. See Zingale v. Powell, 885 So. 2d 277,
280 (Fla. 2004) (“[C]onstitutional interpretation, like statutory
interpretation, is performed de novo.”). The polestar of a statutory
construction analysis is legislative intent. See Borden v. East–
European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006). To discern
legislative intent, this Court looks first to the plain and obvious
meaning of the statute’s text, which a court may discern from a
dictionary. See Rollins v. Pizzarelli, 761 So. 2d 294, 297-98 (Fla.
information generated by peer review, credentialing, investigations,
quality assurance, and risk assessment committees, by having present
at such meetings an attorney or attorneys who may later claim the
attorney-client privilege or work product protection in order to
circumvent the amendment’s operation.
Harris, supra note 2, at 26 (footnotes omitted).
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2000). If that language is clear and unambiguous and conveys a clear
and definite meaning, this Court will apply that unequivocal meaning
and not resort to the rules of statutory interpretation and construction.
See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). If, however, an
ambiguity exists, this Court should look to the rules of statutory
construction to help interpret legislative intent, which may include the
examination of a statute’s legislative history and the purpose behind
its enactment. See, e.g., Gulfstream Park Racing Ass’n v. Tampa Bay
Downs, Inc., 948 So. 2d 599, 606-07 (Fla. 2006).
Similarly, when this Court construes a constitutional provision,
it will follow construction principles that parallel those of statutory
interpretation. See Ford v. Browning, 992 So. 2d 132, 136 (Fla. 2008)
(quoting Zingale v. Powell, 885 So. 2d 277, 282 (Fla. 2004)). As with
statutory construction, a question with regard to the meaning of a
constitutional provision must begin with the examination of that
provision’s explicit language. See id. If that language is “clear,
unambiguous, and addresses the matter at issue,” it is enforced as
written. Id. If, however, the provision’s language is ambiguous or
does not address the exact issue, a court “must endeavor to construe
the constitutional provision in a manner consistent with the intent of
the framers and the voters.” Id.
W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8-9 (Fla. 2012). “The importance
of ascertaining and abiding by the intent of the framers was emphasized, so that ‘a
provision must never be construed in such manner as to make it possible for the
will of the people to be frustrated or denied.’ ” Buster, 984 So. 2d at 486 (quoting
Gray v. Bryant, 125 So. 2d 846, 852 (Fla. 1960)).
First, the language of Amendment 7 provides that “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.” Art. X, § 25(a),
Fla. Const. (emphasis added). As stated above, when interpreting a constitutional
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provision, we must look at the plain language of the provision. See Rollins, 761
So. 2d at 297. Tellingly, the language in Amendment 7 contains no limitation on
the types of adverse medical incident reports that are now discoverable.4 There is
also no qualifying provision in Amendment 7 that limits the scope of discoverable
records to those previously barred by the Legislature and this Court will not read
language into Amendment 7 that was not expressly included. Instead, we apply the
unequivocal meaning of the plain language in Amendment 7, because “that
language is clear and unambiguous and conveys a clear and definite meaning.”
See, 79 So. 3d at 9 (citing Holly, 450 So. 2d at 219). Additionally,
Statutory interpretation is a “holistic endeavor,” and when engaged in
the task of discerning the meaning of a statute, we “ ‘will not look
4. In fact, in determining the applicability of Amendment 7 to adverse
medical incident records created before the amendment’s passage, we specifically
noted the intentionally broad language of Amendment 7:
Here, the plain language of the amendment permits patients to access
any record relating to any adverse medical incident . . . . The use of
the word “any” to define the scope of discoverable records relating to
adverse medical incidents . . . expresses a clear intent that the records
subject to disclosure include those created prior to the effective date
of the amendment.
Buster, 984 So. 2d at 487 (quoting Notami Hosp. of Fla., Inc. v. Bowen, 927 So. 2d
139, 145 (Fla. 1st DCA 2006), aff’d sub nom. Buster, 984 So. 2d 478) (emphasis in
original). While Amendment 7’s intentionally broad construction was being
discussed in terms of its applicability to records created before the amendment’s
passage, this language nonetheless sheds light on the issue before the Court today.
The use of “any record” relating to “any adverse medical incident” expresses a
clear intent to abrogate any and all previously-existing restrictions on the
discoverability of these types of records.
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merely to a particular clause in which general words may be used, but
will take in connection with it the whole statute. . . .’ ” Adverting to
our catalogue of rules of statutory construction,
[w]e are required to give effect to “every word, phrase,
sentence, and part of the statute, if possible, and words in
a statute should not be construed as mere surplusage.”
Moreover, “a basic rule of statutory construction
provides that the Legislature does not intend to enact
useless provisions, and courts should avoid readings that
would render part of a statute meaningless.” “[R]elated
statutory provisions must be read together to achieve a
consistent whole, and . . . ‘[w]here possible, courts must
give full effect to all statutory provisions and construe
related statutory provisions in harmony with one
another.’ ”
Goode v. State, 39 So. 461, 463 (1905) (“It is the general rule, in
construing statutes, ‘that construction is favored which gives effect to
every clause and every part of the statute, thus producing a consistent
and harmonious whole. A construction which would leave without
effect any part of the language used should be rejected, if an
interpretation can be found which will give it effect.’ ”).
Quarantello v. Leroy, 977 So. 2d 648, 651-52 (Fla. 5th DCA 2008) (some citations
omitted).
We also note the plain language contained in Amendment 7’s definition of
an “adverse medical incident.”5 Namely, the language “including, but not limited
5. Amendment 7 defines the phrase “adverse medical incident” to mean
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
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to, those incidents that are required by state or federal law to be reported to any
governmental agency or body” provides meaningful context as to Amendment 7’s
intended broad application. Rather than shed light on Bartow’s and the Second
District’s assertion that Amendment 7 was only intended to eliminate previously
statutorily-protected adverse medical incident reports, this language actually
reinforces the opposite conclusion. Bartow voices the assertion, “The previously
protected records were ones that the statutes required a facility’s own risk
management programs or internal review and quality assurance committees to
create as a condition of licensure.” Answer Br. at 15. It is only these “previously
protected records,” Bartow maintains, that were intended to become discoverable
after Amendment 7’s enactment.
Reading Amendment 7’s language as a whole, and taking into account the
definition of an “adverse medical incident,” however, suggests that the newfound
right to access “any record” under Amendment 7 relating to “any adverse medical
incident” necessarily includes, but is not limited to, those adverse medical incident
records required to be reported by state or federal law. Bartow’s and the Second
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.
Art. X, § 25(c)(3), Fla. Const. (emphasis added).
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District’s interpretation of Amendment 7’s scope, on the other hand, would render
the language of “including, but not limited to,” as “mere surplusage”—a result that
is directly contrary to the rules of statutory and constitutional construction in this
State. See Quarantello, 977 So. 2d at 651-52. Thus, it could not have been the
intent of the Florida voters to enact Amendment 7 with such broadly-worded
language, while simultaneously extremely limiting its scope and application only
to those records previously protected under the licensing statutes. Therefore, we
hold that Amendment 7’s application was not intended to be limited only to those
adverse medical incident records previously protected by statute.
Furthermore, examining the manner in which courts across the State have
addressed the scope of Amendment 7 sheds light on its application in the present
case. Most notably, our decision in Buster has been at the center of discussions
relating to Amendment 7. Although generally addressing different issues than
those before the Court today, the language and analysis set forth in Buster help
guide the Amendment 7 analysis in this case.
As we explained in Buster:
[T]he chief purpose of amendment 7 was to do away with the
legislative restrictions on a Florida patient’s access to a medical
provider’s “history of acts, neglects, or defaults” because such history
“may be important to a patient.” In other words, while this history
was not previously accessible, it became accessible when the
electorate approved a constitutional override of the prior statutory
restrictions. The central focus of the amendment was to provide
access to records that existed but were not accessible due to statutory
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restrictions. The language of the amendment could hardly have been
more specific or articulate in expressing the intent that what was not
accessible before would be accessible with the passage of the
amendment.
Similarly, the ballot summary for the amendment reflects that
the amendment’s clear purpose was to do away with existing
restrictions on a patient’s right to access a medical provider’s history
of adverse medical incidents and to provide a clear path to access
those records.
....
The ballot summary, like the text of the amendment itself, clearly
expressed an intent to do away with then current Florida law
restricting access to this information and would lead voters to the
conclusion that all records, including existing records, would
henceforth be subject to patient review. The summary indicates that,
with the passage of the amendment, there would no longer be any
legal barrier to obtaining this information and that a patient, the day
after this amendment passed, would have access to this important
information of a provider’s past record.
Buster, 984 So. 2d at 488-89 (emphasis added) (citations omitted).
In addition, in Buster, we specifically noted that the statutory restrictions
constituted only one barrier at issue with regard to production of this information
and the constitutional provision resulted in removing that obstacle to access. Id. at
489. Thus, our explanation in Buster that the passage of Amendment 7 was a
related result of the pre-existing statutory protections on the discoverability of
adverse medical incident reports is not the be all and end all in this analysis; rather,
it was one of the most apparent and significant obstacles to adverse medical
incident discovery in place at the time. It does not necessarily follow, however,
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that Amendment 7’s scope was thus limited only to discovery of adverse medical
incident reports previously protected by statute.
Since Buster, courts across the State have reiterated the statements contained
therein, and have commented on a patient’s right to access these Amendment 7
adverse medical incident reports. See Baldwin v. Shands Teaching Hosp. &
Clinics, Inc., 45 So. 3d 118, 123 (Fla. 1st DCA 2010) (“The Florida Supreme
Court has recognized that this popularly adopted amendment affects, or even
abrogates, statutes that previously exempted records of investigations, proceedings,
and records of peer review panels from discovery in civil or administrative
actions.”); Lakeland Reg’l Med. Ctr. v. Neely ex rel. Neely, 8 So. 3d 1268, 1270
(Fla. 2d DCA 2009) (“As broadly construed by the court in Buster, Amendment 7
‘remove[s] any barrier to a patient’s discovery of adverse medical incident
information, including the peer review protections provided by the statute.’ ”
(alteration in original) (emphasis added)); Columbia Hosp. Corp. of S. Broward v.
Fain, 16 So. 3d 236, 240 (Fla. 4th DCA 2009) (“The purpose of Amendment 7 was
to lift the shroud of secrecy from records of adverse medical incidents and make
them widely available. . . . A request for Amendment 7 materials is not an
ordinary discovery request which can be subjected to overbreadth, irrelevance, or
burdensomeness objections. Pursuant to the amendment, a ‘patient’ has the
absolute right to discover records relating to any adverse medical incident and that
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right is not conditioned on the discovery being relevant to a pending claim.”
(emphasis added)); See, 79 So. 3d at 15 (“[Limiting disclosure of adverse medical
incidents] conflicts with Amendment 7’s definition of adverse medical incidents,
which does not place a boundary on matters to be disclosed to patients.”); Gmach,
14 So. 3d at 1050 (“In approving amendment 7, the citizens of Florida have
demonstrated their conclusion that a patient’s right to obtain records made in the
course of business by a health care provider is a more important consideration than
the chilling effect created by the potential public disclosure of those records.”); see
also See, 79 So. 3d at 14 (“[The Hospital’s] argument that pursuant to [section
381.028(7)(b)1., Florida Statutes,] it must provide only certain reports . . . is
expressly contrary to the amendment. The amendment provides that it is ‘not
limited to’ incidents that already must be reported under law.” (emphasis in
original) (quoting Fain, 16 So. 3d at 241)); Buster, 984 So. 2d at 489 (“Indeed, in
our opinion approving placement of the amendment of [sic] the ballot we
concluded that it ‘creates a broader right to know about adverse medical incidents
than currently exists.’ ”). While some courts have continued to reiterate the
Amendment’s purpose as abrogating pre-existing statutory limitations on adverse
medical incident discovery, others have referred to the constitutional right created
by Amendment 7 as an “absolute right,” Fain, 16 So. 3d at 240 (emphasis added),
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aimed at eliminating “any legal barrier to obtaining this information,” Buster, 984
So. 2d at 489 (emphasis added).
Thus, while in our opinion in Buster we explained one of the chief purposes
of Amendment 7 as being aimed at eliminating prior statutory restrictions on
adverse medical incident discovery, we did not do so in a way that limited the right
created by the amendment. The prior statutory protections served only as an
explanation for Amendment 7’s genesis, rather than a limitation on the
amendment’s broad application. Moreover, in the cases since Buster, many courts
have expanded upon Buster’s explanation by interpreting the amendment’s right as
an absolute right to review adverse medical incident reports. 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 added).
Adverse Medical Incident Reports
Next, we address whether the external peer review reports at issue here
contain information on adverse medical incidents that fall within the purview of
Amendment 7—namely, by determining whether the external peer review
committee itself constitutes a “similar committee” as enunciated in the
constitutional provision. Amendment 7 defines the phrase “adverse medical
incident” to mean
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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.
Art. X, § 25(c)(3), Fla. Const. (emphasis added).
The Second District determined that the reports at issue were not created by
a “similar committee,” as contemplated by the language in Amendment 7, noting
the distinction discussed in Neely “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.’ ” Edwards, 175 So.
3d at 826 (quoting Neely, 8 So. 3d at 1270 n.2). This distinction, however,
necessarily presumes that Amendment 7’s application was intended only to reach
those records previously protected by the Legislature before the amendment’s
passage—a presumption that, as explained above, we find to be erroneous.
Importantly, Bartow concedes that the reports at issue do, in fact, contain
information relating to adverse medical incidents, but nonetheless asserts that they
are not the types of reports contemplated by Amendment 7 because they were not
made pursuant to Bartow’s statutory reporting obligations. Conversely, Edwards
maintains that the external peer review committee that reviewed the reports at issue
is the exact type of “similar committee” referenced in Amendment 7.
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We must again employ the rules of statutory and constitutional construction
in answering this question. First, in looking to the plain language quoted above, it
must be noted again that the language of Amendment 7 contains no limitation on
the definition of “adverse medical incidents” based on a health care facility’s
statutory reporting obligations.
In fact, as discussed above, the phrase “including, but not limited to” when
referencing the reports required by state or federal law to be reported requires a
directly contrary meaning. Furthermore, reading the entire provision logically,
directly mentioning reports generated pursuant to state or federal law presumes that
these reports are generated by statutorily-mandated risk management committees.
The provision then goes on to expressly include an additional and entirely separate
category of incidents—namely, those “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.” Art. X, §
25(c)(3), Fla. Const. (emphasis added). Presumably, reading the provision as
written in its entirety, the incident reports generated pursuant to state or federal law
(which are incident reports generated pursuant to statutorily-mandated internal risk
management or peer review committees) are a different category of reports from
those created by any similar health care facility committee. Moreover, we often
apply rules of grammar during our constitutional construction to determine the
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drafters’ intent. See State v. Bodden, 877 So. 2d 680, 685-86 (Fla. 2004). By
making the language in this provision two separate clauses, the drafters of
Amendment 7 signaled that these two clauses were intended to be read
disjunctively.
Bartow and the Second District, however, read this provision to require only
the production of incident reports generated pursuant to the statutory reporting
obligations. This reading seemingly conflates the reports generated pursuant to a
statutory obligation and those other reports generated pursuant to any similar
health care facility committee. Rather than give the entire provision a reasonable
and logical meaning, Bartow and the Second District’s interpretation renders the
language in the provision concerning incidents generated in accordance with state
or federal law meaningless because it presumes that the second half of the
language in the provision, including any “similar committees,” refers only to those
same statutorily-mandated committees. See Quarantello, 977 So. 2d at 651-52
(stating that a statutory interpretation cannot render portions of the provision
meaningless or “mere surplusage”).
Additionally, as with the use of “any records” relating to “any adverse
medical incident,” the provision defining “adverse medical incident” also contains
similarly broad wording with regard to the incidents reviewed by health care
facility committees. See art. X, § 25(c)(3), Fla. Const. (“[A]nd incidents that are
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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)). Rather than limiting its application, the use
of “any” repeatedly throughout the language of Amendment 7 yet again indicates
its broadly designed and intended nature. There is no mention in the provision of
its applicability only to “any internal” committee or to “any statutorily-mandated”
committee, and this Court will not read that language into Amendment 7.
Therefore, we conclude that the committees specifically listed in article X, section
25(c)(3) of the Florida Constitution are not limited only to those required by a
statutory obligation.
The meaning of “similar committees” is both clear and unambiguous as we
delve further into the rules of constitutional analysis to ascertain the intended
meaning behind the phrase. We conclude that the phrase “similar committees” was
intended to apply to both risk management committees similar to those specifically
listed, and also to those beyond what are statutorily required of health care
facilities.
Tellingly, “[t]he Florida Legislature enacted these peer review statutes in an
effort to control the escalating cost of health care by encouraging self-regulation by
the medical profession through peer review and evaluation.” Cruger v. Love, 599
So. 2d 111, 113 (Fla. 1992). These statutes, however, are the floor, rather than the
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ceiling for health care facilities’ self-regulation. See § 395.0197(3), Fla. Stat.
(2017) (“In addition to the programs mandated by this section, other innovative
approaches intended to reduce the frequency and severity of medical malpractice
and patient injury claims shall be encouraged and their implementation and
operation facilitated.”). In addition to those required by statute, health care
facilities can participate in and seek out additional voluntary committees and
programs that provide additional resources on how to improve the quality of care
rendered to patients. Id.; see generally Charles, 209 So. 3d 1199 (discussing the
Federal Patient Safety and Quality Improvement Act and how it relates to patients’
rights under Amendment 7). These additional programs and reviews cannot
logically be excluded from Amendment 7’s application simply because they are in
addition to the base-level, statutorily-required risk management committees. Such
a result would be directly contrary to the intent and express words of Florida voters
to have greater access to adverse medical incident records than they did before the
passage of Amendment 7. Moreover, the result asserted by Bartow 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.
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Therefore, we hold that, based on the express language and the principles of
constitutional analysis, the external peer review committee at issue in this case
does qualify as a “similar committee” under Amendment 7.
“In the Course of Business” Requirement
Unlike “adverse medical incident,” “in the course of business” in this
context is not specifically defined in the text of Amendment 7, nor has it been
interpreted in this context by any court in Florida to date. Nevertheless, Bartow
contends, and the Second District agrees, that the external peer review reports at
issue were not made “in the course of business” because they were not made
pursuant to Bartow’s statutory documentation and reporting requirements, but
rather were requested in anticipation of litigation. Curiously, while the Second
District did acknowledge that some records can be kept in the ordinary course of
business, even absent any sort of statutory obligation, it nonetheless summarily
concluded that the records at issue were not kept in the ordinary course of business
because they were created by an expert retained in anticipation of litigation.6
Edwards, 175 So. 3d at 825.
6. The entire dissent is predicated on a fundamental flaw that fails to
acknowledge and apply that this entire constitutional provision as written as it
relates to and is built upon an “adverse medical incident,” which is inherent in all
medical “litigation.”
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The only Florida case that provides some guidance on this issue is our recent
decision in Charles. At issue in Charles was whether records that a hospital
created relating to adverse medical incidents, and thus falling within the ambit of
Amendment 7, were rendered confidential and privileged simply because they
were voluntarily submitted for review under the Federal Patient Safety and Quality
Improvement Act (“the Federal Act”). Charles, 209 So. 3d at 1203. In
determining that the reports at issue were not protected, due to the hospital’s
independent obligation to maintain similar reports pursuant to Florida law, we
explained,
Florida has various statutes and rules, many of which pre-date the
Federal Act, that require a health care provider to create and maintain
adverse medical incident reports. See § 395.0197(4)-(7), Fla. Stat.
(2015) (requiring risk program that includes adverse incident reports);
see also Fla. Admin. Code r. 59A-10.0055 (establishing risk
management system to report adverse incidents to the Florida Agency
for Health Care Administration). Amendment 7 provides individuals
the right to access “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), Fla. Const. In other words, health
care providers are required by state law to keep adverse medical
incident reports, and the right of patients to access those adverse
medical incident reports is enshrined in Florida’s Constitution.
....
Simply put, adverse medical incident reports are not patient
safety work product because Florida statutes and administrative rules
require providers to create and maintain these records and
Amendment 7 provides patients with a constitutional right to access
these records. . . . In addition, their disclosure fits squarely within the
providers’ recordkeeping obligations under state law.
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Id. at 1211.
Specifically, we noted in Charles that the requested documents “were
primarily adverse medical incident reports . . . [and the hospital] acknowledged
that some of its occurrence reports would have been discoverable pursuant to that
request, but for the Federal Act.” Id. at 1216; see also id. at 1206 (“[The hospital]
claimed that certain other documents, primarily occurrence reports, while
potentially responsive because they were adverse incident reports, were not subject
to production because they were privileged and confidential under the Federal Act
as patient safety work product.” (emphasis added)). Similarly, here Bartow
concedes that the documents at issue relate to adverse medical incidents, but
nonetheless attempts to shield them from discovery. However, much like the
“occurrence reports” generated in Charles, Bartow’s external peer review reports
contain similar information about the adverse medical incidents as those they had
an independent obligation to maintain through their internal risk management
committees pursuant to Florida law.
[T]he records do not become patient safety work product simply
because they were placed in a patient safety evaluation system or
submitted to a patient safety organization because providers have an
independent obligation under Florida law to create and maintain them,
and Amendment 7 provides patients with a constitutional right to
access them. Consequently, adverse medical incident reports
produced in conformity with state law and requested by patients under
Amendment 7 cannot be classified as confidential and privileged
patient safety work product under the Federal Act.
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Id. at 1212 (citations omitted). Here, the mere fact that Bartow voluntarily
outsourced its peer review needs also does not place the reports produced outside
or beyond the scope of Amendment 7’s reach. Any contrary conclusion would
provide hospitals with a blueprint as to the method to evade their constitutionally-
mandated discovery requirements.
The Department of Health and Human Services explained how
providers have been attempting to use the confidentiality and privilege
provisions in the Federal Act to their advantage:
First, some providers with recordkeeping or record
maintenance requirements appear to be maintaining the
required records only in their [patient safety evaluation
system] and then refusing to disclose the records,
asserting that the records in their [patient safety
evaluation system] fulfill the applicable regulatory
requirements while at the same time maintaining that the
records are privileged and confidential [patient safety
work product]. Second, some providers appear to
develop records to meet external obligations outside of
the [patient safety evaluation system], place a duplicate
copy of the required record into the [patient safety
evaluation system], then destroy the original outside of
the [patient safety evaluation system] and refuse to
disclose the remaining copy of the information, asserting
that the copy is confidential and privileged [patient safety
work product]. The Patient Safety Act was not intended
to give providers such methods to evade their regulatory
obligations.
Id. at 1216 (alterations in original) (citing 81 Fed. Reg. 32,655-01, 32,657-58).
The concerns with regard to a hospital evading its reporting and discovery
obligations are not appeased in the situation before us today. Rather, Bartow’s
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argument and the Second District’s holding would provide yet another avenue by
which hospitals could deprive the people of Florida of their constitutional right to
review “any records . . . relating to any adverse medical incident.” Art. X, § 25(a),
Fla. Const. (emphasis added). 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.
Additionally, it is worth noting that if Bartow 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.7 See Sandegren v. State ex rel. Sarasota Cty. Pub. Hosp. Bd., 397 So. 2d
7. See 23 Fla. Jur. 2d Medical Records § 320 (“As with other forms of
business records, medical records can be entered as evidence if made at or near the
time by, or from information transmitted by, a person with knowledge; if kept in
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657, 660 (Fla. 1981) (holding that an exhibit containing a compilation of dates,
total charges, and payments from various sources for over one thousand Baker Act
patients treated by the hospital over a period of time was admissible under the
business records exception because “the underlying data upon which the
questioned exhibit was based was prepared and kept in the regular course of
business”); CF Chems., Inc. v. Fla. Dep’t of Labor & Emp’t Sec., 400 So. 2d 846,
848 (Fla. 2d DCA 1981) (holding that employee attendance records were made in
the regular course of business, where such “records were regularly completed and
maintained to protect [the employer] in the event an employee filed a grievance”);
Jackson v. State, 877 So. 2d 816, 817-18 (Fla. 4th DCA 2004) (holding that
the course of a regularly conducted business activity; and if it was the regular
practice of that business activity to make such memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified
witness, unless the sources of the information or other circumstances show a lack
of trustworthiness.”); Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 803.6, at
1076 (2017 ed.) (“Not only are records which are routinely and frequently made by
the business admissible under section 90.803(6), the exception also includes non-
routine records which are infrequently made but which are made by the business
whenever an event occurs.[n.10] If in response to an infrequent event, it is the
regular practice of the business to make the record, the record is admissible.
[n.10] 4 Weinstein, Evidence § 803(6)[01] at 803-151 (‘The test was not whether
the particular type of record was being made routinely, but whether the record was
made in conjunction with a routine, established, regular operation.’).”); see
generally § 395.0193, Fla. Stat. (2017) (requiring licensed health care facilities, as
a condition of licensure, to maintain peer review processes); § 395.0197, Fla. Stat.
(requiring that every licensed healthcare facility establish an internal risk
management program).
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records were admissible under the business records exception to the hearsay rule
even though they were technically prepared in anticipation of litigation because
they were nonetheless kept in the ordinary course of business). 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.
Therefore, we conclude that the reports at issue here are the type that are
“made or received in the course of business by a health care facility or provider.”
Art. X, § 25(a), Fla. Const.
Work Product and Attorney-Client Privilege
Bartow also asserts that the external peer review reports at issue are
protected from discovery under the work product privilege or, in the alternative,
under the attorney-client privilege. “Work product can be divided into two
categories: ‘fact’ work product (i.e., factual information which pertains to the
client’s case and is prepared or gathered in connection therewith), and ‘opinion’
work product (i.e., the attorney’s mental impressions, conclusions, opinions, or
theories concerning his client’s case).” State v. Rabin, 495 So. 2d 257, 262 (Fla.
3d DCA 1986). However, as the Third District explained in Acevedo v. Doctors
Hospital, Inc.,
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The plain language of Amendment 7 evinces intent to abrogate any
fact work privilege that may have attached to adverse medical incident
reports prior to its passage. See Fla. Eye Clinic, P.A. v. Gmach, 14
So. 3d 1044, 1048 (Fla. 5th DCA 2009) (ordering disclosure of
incident reports prepared by the clinic’s risk manager in accordance
with Amendment 7); Fla. Hosp. Waterman, Inc. v. Buster, 984 So. 2d
478, 489 (Fla. 2008) (upholding the constitutionality of Amendment 7
and noting that it creates “a broader right to know about adverse
medical incidents than currently exists”); Lakeland Reg’l Med. Ctr. v.
Neely, 8 So. 3d 1268, 1270 (Fla. 2d DCA 2009) (finding no basis to
except work product materials from the reach of Amendment 7 as
interpreted by Buster).
68 So. 3d 949, 953 (Fla. 3d DCA 2011); see Kirkland, 126 So. 3d at 1253
(“Amendment 7 also preempts application of the work product doctrine to the
extent it relates to fact work product.” (emphasis in original)). Thus, to the extent
that Bartow argues that the external peer review reports are protected fact work
product, we disagree. The dissent would summarily conclude, as did the Second
District, that these records are protected work product without differentiating
between fact and opinion work product and without providing any legal
justification for this conclusion. This conclusion, however, 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. The dissent also fails to consider that any
adverse medical incident generates investigatory responses, the results of which are
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expressly covered by the constitutional provision. 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.
However, based on the record before us today, we do not need to address the
issue of opinion work product or the attorney-client privilege as they relate to
Amendment 7. Here, there is no basis that opinions of counsel are involved, nor
are communications between counsel and client presented. Therefore—here—to
the extent that these reports contain any fact work product at all, we hold that
Bartow’s external peer review reports are discoverable under Amendment 7’s
broad reach.
CONCLUSION
Accordingly, we hold that the external peer review reports are discoverable
under Amendment 7, and we quash the Second District’s decision in Edwards.
It is so ordered.
LABARGA, C.J., and PARIENTE, and QUINCE, JJ., concur.
POLSTON, J., concurs in result.
LAWSON, J., dissents with an opinion, in which CANADY, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
LAWSON, J., dissenting.
Because the plain language of our constitution requires this Court to approve
the Second District’s decision shielding expert reports prepared in anticipation of
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litigation—rather than in the course of business—from disclosure pursuant to
Amendment 7, I respectfully dissent.
Amendment 7 provides in pertinent part that “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.” Art. X, § 25(a), Fla.
Const. (emphasis added). Work product prepared in anticipation of litigation is the
antithesis of the “records made or received in the course of business” that fall
within Amendment 7’s ambit. See Progressive Am. Ins. Co. v. Lanier, 800 So. 2d
689, 691 (Fla. 1st DCA 2001) (explaining that the work-product doctrine protects
documents prepared “in anticipation of litigation, rather than in the ordinary course
of . . . business”); see also § 381.028(3)(j), Fla. Stat. (2010) (defining “records” for
purposes of legislation implementing Amendment 7 to exclude “documents or
portions thereof which constitute, contain, or reflect any attorney-client
communications or any attorney-client work product”).
To reach the opposite conclusion—that the expert reports the hospital,
through its counsel, obtained in anticipation of litigation in this case “are the type
that are ‘made or received in the course of business by a health care facility or
provider,’ ” majority op. at 30 (quoting art. X, § 25(a), Fla. Const.)—the majority
reasons that hospitals generally keep records of adverse medical incidents, so the
reports at issue must have been prepared and received in the course of the
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hospital’s business. From there, the majority concludes that, even if the reports
contain work product, they are nevertheless subject to disclosure under
Amendment 7. The majority’s circular reasoning, however, ignores the plain
language of Amendment 7’s “course of business” requirement, which is not
satisfied on the facts of this case.
As the Second District explained below, 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.” Bartow HMA, LLC v. Edwards,
175 So. 3d 820, 824-26 (Fla. 2d DCA 2015). There is no evidence that the hospital
sought these expert opinions—which were not “part of [its] regular peer review
process”—in an attempt to avoid the disclosure requirements of Amendment 7. Id.
at 826. Rather, “[t]he [h]ospital satisfied [Amendment 7’s] requirements by
providing access to numerous documents pertaining to internal adverse incident
reporting and peer review” and, in contrast, relied upon M.D. Review’s reports for
“an expert opinion on the standard of care” to prepare for “litigation [that was]
imminent.” Id. at 825-26. Accordingly, as the Second District correctly held, the
reports at issue, which were “created by an expert retained for purposes of
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litigation[,] are not kept in the course of regularly conducted business activity” and
therefore “were not ‘made or received in the course of business’ under Amendment
7.” Id. at 825.8
Moreover, while proper application of Amendment 7’s “course of business”
requirement is sufficient to end the inquiry, see Fla. League of Cities v. Smith, 607
So. 2d 397, 400 (Fla. 1992) (“[W]hen constitutional language is precise, its exact
letter must be enforced . . . .”), 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
8. Contrary to the majority’s assertion, I am not suggesting that a hospital
can avoid Amendment 7’s requirements by funneling requests for adverse medical
incident investigations through an attorney or that a hospital can shield routine
business records from discovery by providing them to an expert. What I am saying
is where, as happened here, a hospital, through its attorney, seeks an expert opinion
on whether the hospital satisfied the applicable standard of care for the express
purpose of preparing for imminent litigation, that is not—at least not prior to
today—making or receiving records “in the course of business.” That is preparing
work product in anticipation of litigation. And that is why, by its plain language,
Amendment 7 does not apply to the reports prepared by M.D. Review, regardless
of the specific type of work product those reports contain.
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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.
Applying Amendment 7’s plain language consistently with this Court’s
holding regarding its intent, like the Second District, I would conclude 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 majority’s contrary holding improperly reads the “course of
business” language as superfluous and recasts the constitutional provision, without
it, as providing for discovery of any records relating to adverse medical incidents
with “no limitation[.]” Majority op. at 11. Therefore, I dissent.
CANADY, J., concurs.
Application for Review of the Decision of the District Court of Appeal –
Constitutional Construction
Second District – Case No. 2D14-3450
(Polk County)
Kara Berard Rockenbach and Kristi Bergemann Rothell, Methe & Rockenbach,
P.A., West Palm Beach, Florida;
for Petitioner
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Amy L. Dilday, McCumber, Daniels, Buntz Hartig & Puig, P.A., Tampa, Florida;
for Respondent
- 37 -