Many medical negligence actions are characterized by information asymmetry. Indeed, although a person may be aware that she has been injured, she may be unaware of the source of this injury and, moreover, whether the conduct leading to the injury was actually negligent. Given the imbalance in information that often exists, discovery is of particular importance in many medical malpractice cases. In fact, since 2004 the Florida Constitution has contained a provision that affords citizens a right to access particular information in medical negligence cases. The breadth of this provision, Fla. Const. article X, section 25, was recently addressed in a decision from Florida’s Second District Court of Appeal, Bartow HMA, LLC v. Edwards.
Edwards arose from an alleged act of medical negligence during a gallbladder removal surgery that resulted in the severing of the plaintiff’s common bile duct. Following this surgery, the plaintiff brought suit against the hospital where the surgery was performed and the physician who performed the procedure. During discovery, the plaintiff served the hospital with a request for all documents created within the five years prior to the procedure that related to the physician’s treatment of any patient and for all documents related to the hospital’s review of the plaintiff’s care and treatment. The hospital did not comply with the request in its entirety, arguing that certain documents were subject to privilege and thus beyond the bounds of discovery. Among the documents the hospital declined to produce were those related to a peer review of the adverse medical incident at issue that was requested by the hospital’s counsel. The plaintiff brought various motions seeking disclosure of the documents, and the trial court eventually entered an order requiring the hospital to produce all documents related to its peer review of the adverse medical incident. The hospital then brought this interlocutory appeal.
After determining that an interlocutory appeal was warranted, the Fourth District then addressed whether the trial court had erred in compelling the disclosure of the documents. In support of the disclosure, the plaintiff argued that the production was required by article X, section 25, which provides 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.” Fla. Const. Art. X, § 25(a). Although Florida law provides health care facilities and providers protection from the disclosure of confidential documents related to a peer review that is conducted by a medical review committee or a 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), the Fourth District needed to determine whether the documents requested fell with the coverage of the Florida Constitution and thus were discoverable. The Court determined that the documents were not.
First, the Court agreed with the hospital’s contention that the documents sought were not “made or received in the course of business.” Indeed, the hospital does not routinely perform peer reviews of adverse medical incidents. Instead, counsel for the hospital sent a request to a third-party peer review business to review various procedures performed by the physician whose conduct is at issue in this suit, and the hospital consistently maintained that the review was requested for purposes of this litigation and not as part of some routine practice. To determine the meaning of “in the course of business,” the court looked to case law examining similar language in the statutory hearsay exception. Here, the court noted that the hospital was under no legal obligation to retain third-party experts to perform peer reviews, and even though records may be kept “in the ordinary course of business” in the absence of a legal compulsion to do so, the court noted that documents prepared for the purposes of litigation are generally not considered to be made in the ordinary course of business. See Brown v. Int’l Paper Co., 710 So. 2d 666, 668 (Fla. 2d DCA 1998).
Likewise, the Fourth District was not persuaded that the definition of adverse medical incident indicated that the reports at issue fell within the bounds of article X, section 25. Although the definition of adverse medical incident as used by the provision includes “incidents that are reported to or reviewed by any health care facility peer review,” the Court did not agree that the third-party peer review here was equivalent to a health care facility peer review. Indeed, the report here was not part of a standard peer review process at the hospital but instead contained an expert opinion that was specially requested by counsel. As the court noted earlier, the hospital was under no legal obligation to perform the peer reviews, which undermined the plaintiff’s argument that the third-party peer reviews were requested as a means of circumventing coverage under article X, section 25. Since the records at issue here did not fall under the coverage of the provision and were otherwise subject to privilege, the Court concluded that the trial court erred in ordering that they be produced.
Although often overlooked in legal procedural dramas, discovery is an incredibly important part of litigation. Indeed, the plaintiff stood to gain a bountiful amount of useful information from the peer review report. Given the imbalance of information that often exists in these and other negligence cases, a litigant should always consider finding counsel well versed in the mechanics of discovery and ready to argue for every pertinent document. The South Florida medical malpractice attorneys at Frankl & Kominsky have represented many injured South Floridians and are ready to provide zealous advocacy from the filing of the complaint to trial. If you have recently been injured and would like to learn more about the strength of your possible claim, feel free to contact us for a free case consultation.