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Florida Supreme Court rules that "adverse medical incident reports" subject to disclosure to patients under Florida Constitution include external peer review reports

On October 26, 2017, in Edwards v. Thomas, No. SC15-1893, the Florida Supreme Court quashed a Florida Second DCA decision which had held that external peer review reports were not subject to disclosure in a pending medical negligence lawsuit because they “were not made or received in the ordinary course of business” and because they did not constitute “adverse medical incident reports” within the meaning of the Florida constitutional provision.

The plaintiff in the lawsuit had served a Request to Produce on the co-defendant, Bartow Regional Medical Center, requesting several records relating to adverse medical incidents that occurred at Bartow. The basis for the plaintiff’s Request was article X, section 25 of the Florida Constitution, which guarantees patients 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.” Section 25 expressly defines “adverse medical incident” to include any act that “caused or could have caused injury to or death to 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.” The defendant produced certain internal peer review documents, but objected to the production of external peer review reports prepared by an outside company, M.D. Review, on several grounds, including the two grounds upon which the Florida Second DCA subsequently quashed the trial court’s order requiring the production of the external peer review reports.

Regarding the first issue, whether the external peer review reports were adverse medical incident reports within the meaning of article X, section 25, the Florida Supreme Court rejected the hospital’s assertion that section 25 only extended to adverse incident reports required to be reported by state or federal law, noting that such a construction would render the language “including, but not limited to” as mere surplusage. The court additionally noted that a request for adverse incident reports is not subject to denial for overbreadth, irrelevance, or because production will be burdensome, because a patient has an absolute right under the Florida Constitution to discover records relating to any adverse medical incident and the discovery is not conditioned on the discovery being relevant to a pending claim.

Regarding the second issue, whether the external peer review reports were “made or received in the course of business” of the hospital within the meaning of section 25, the Second DCA had ruled the external peer review reports were not business records because they were created by an expert retained in anticipation of litigation. The Florida Supreme Court rejected this argument, noting that the external peer review reports contained similar information to reports the hospital had an independent obligation to maintain through its internal risk management committees pursuant to Florida law. The Court concluded that the hospital could not evade its constitutionally-mandated discovery requirements by outsourcing its peer review process.

Finally, the Supreme Court rejected the hospital’s additional arguments that the reports were protected from discovery under the work product privilege or the attorney-client privilege. The Court noted that protection from discovery of fact work product, to the extent that it was contained in the reports, was expressly abrogated by section 25, and that if merely having an attorney request records following an adverse medical incident cloaked the fats with secrecy, the constitutional right would be “emasculated and ultimately erased.”