Acevedo v. Doctors Hosp. Inc.

• Decision Date: 21 September 2011
• Docket Number: No. 3D10–2257.,3D10–2257.
• Parties: Dania ACEVEDO and Ricardo Acevedo, Petitioners,v.DOCTORS HOSPITAL, INC., et al., Respondents.
• Court: Florida District Court of Appeals

68 So.3d 949

Dania ACEVEDO and Ricardo Acevedo, Petitioners,

v.DOCTORS HOSPITAL, INC., et al., Respondents.

No. 3D10–2257.

District Court of Appeal of Florida, Third District.

Aug. 17, 2011.Rehearing Denied Sept. 21, 2011.

Donna B. Michelson and James Blecke, Coral Gables, for petitioners.Falk, Waas, Hernandez, Cortiña, Solomon & Bonner and Norman M. Waas, Coral Gables, and Scott L. Mendlestein, for respondents.Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.RAMIREZ, J.

Dania and Ricardo Acevedo petition this Court for a writ of certiorari quashing the trial court's July 2010 order on two grounds. First, petitioners request this Court quash paragraph 4 of the order instructing that all “opinions, comments, recommendations or findings, no matter by whom made” be redacted from the documents requested by petitioner pursuant to article X, section 25(a) of the Florida Constitution (Amendment 7) (emphasis added). Additionally, petitioners request this Court order production of all hospital documents related to specific adverse medical incidents per petitioners' Requests for Production 9, 10 and 11. We find the trial court departed from the essential requirements of the law in concluding that all opinions, comments, recommendations or findings contained in the requested reports should be redacted as opinion work product. Additionally, we find the trial court abridged petitioners' Amendment 7 rights in protecting certain documents related to events the court deemed adverse medical incidents. Accordingly, we grant the petition, quash paragraph 4 of the circuit court's order, and require Doctors Hospital to produce all records of adverse medical incidents pursuant to petitioners' Requests for Production 9, 10 and 11.

I.

This litigation commenced with the Acevedos' claims for medical malpractice and negligent hiring/retention pursuant to section 766.101, Florida Statutes (2007). The counts pertinent to this petition allege that defendant Dr. Solomon performed unnecessary or excessive surgery; that he did so negligently; and that respondent Doctors Hospital was negligent pursuant to section 766.101, with respect to its hiring and retention of Dr. Solomon. The Acevedos set forth the following three requests for production that are the subject of this petition:

9. Any and all records relating to any adverse medical incident involving the plaintiff, Diana Acevedo.

10. Any and all records relating to any adverse medical incident involving Emery M. Salom, M.D. while providing physician care at Defendant's hospital, redacting the identifying information of any patients, other than the plaintiff, from the records being provided.

11. Any and all records relating to any adverse medical incident involving Luis E. Mendez, M.D. while providing physician care at Defendant's hospital, redacting the identifying information of any patients, other than the plaintiff, from the records being provided.

Doctors Hospital filed a memorandum of law objecting to the Acevedos' request. Following this Court's decision in Lower Keys Medical Center v. Windisch, 29 So.3d 351 (Fla. 3d DCA 2010), petitioners moved for an order overruling Doctors Hospital's objections. Doctors Hospital subsequently agreed to provide all incident reports and “Code 15” reports pursuant to Request 9, and filed a privilege log for the remaining Amendment 7 documents. In response, petitioners filed a “Motion for Order Compelling Defendant to Provide All Amendment 7 Records.”

After a hearing in May 2010, the trial court granted petitioners' motion to the extent it required Doctors Hospital to provide petitioners with copies of incident reports and “Code 15” reports responsive to Requests 10 and 11. The trial court additionally allowed Doctors Hospital to file a privilege log for all adverse incident records responsive to Requests 9, 10 and 11 that had not been previously provided and to which Doctors Hospital claimed privilege. Accordingly, Doctors Hospital filed a privilege log asserting the documents were opinion work product. The court conducted an in camera review of the privilege log and after a second hearing issued an order. Paragraph four of the order reads as follows:

The portions of the documents and attachments, if any, reviewed in camera that contain opinions, comments, recommendations or findings, no matter by whom made, are held outside the scope of fact work product and are held to be opinion work product. Those portions of the documents and attachments, if any, identifying “reasons” are not, however, opinion work product. Defendant shall redact said opinions, comments, recommendations and findings from the documents ordered to be produced herein.

(emphasis added). Without explanation, the trial court also withheld several risk management worksheets and one incident report relating to events which the court deemed adverse medical incidents. Petitioners now seek a writ of certiorari quashing the paragraph above and instructing Doctors Hospital to produce all adverse medical incident records.

II.

Certiorari is rarely granted where the lower court denies discovery of certain information because the harm can generally be rectified on appeal. See Ruiz v. Steiner, 599 So.2d 196, 197 (Fla. 3d DCA 1992). Nevertheless, certiorari is appropriate where, as here, petitioner demonstrates irreparable harm by showing information critical to the case would not be known or available to the appellate court for review without an order compelling discovery. Id. (granting petition where the trial court denied petitioner's motion to compel after erroneously concluding autopsy reports were privileged); Office of Att'y Gen. v. Millennium Commc'ns & Fulfillment, Inc., 800 So.2d 255, 257 (Fla. 3d DCA 2001) (granting certiorari and quashing protective order preventing petitioner from obtaining discovery where inability to determine post-judgment what the testimony would be or how it would affect the result created irreparable injury); Riano v. Heritage Corp. of S. Fla., 665 So.2d 1142 (Fla. 3d DCA 1996).

Issuing a writ of certiorari in the instant case is necessary as the order under review is a departure from the essential requirements of the law resulting in material injury for the remainder of the case that cannot be corrected on post-judgment appeal. See Royal Caribbean Cruises, Ltd. v. Cox, 974 So.2d 462, 468 (Fla. 3d DCA 2008). The information petitioners seek is material and goes to the heart of their case such that no other documents can be substituted for those remaining in respondent's custody. See Baldwin v. Shands Teaching Hosp. & Clinics, Inc., 45 So.3d 118, 123–26 (Fla. 1st DCA 2010) (granting certiorari where trial court denied petitioner's motion to compel non-party to produce all adverse incident reports, including risk management and peer review records).

Moreover, certiorari is appropriate here because the redaction of comments and opinions from the adverse medical incident reports presents an unwarranted interference with petitioners' constitutional right under Amendment 7.¹See Williams v. Spears, 719 So.2d 1236, 1239 (Fla. 1st DCA 1998) (explaining, “certiorari is an appropriate remedy where constitutional rights are deprived or delayed during the pendency of a legal proceeding”). Denying petitioners access to the redacted portions of the Amendment 7 reports and remaining risk management and incident reports would cause petitioners harm irreparable on appeal. Accordingly, we find this Court has jurisdiction to grant petitioner's writ for certiorari.

III.

Regarding the asserted privilege, Doctors Hospital argues the redacted portions of the Amendment 7 reports are tantamount to the comments, opinions, conclusions and impressions of respondent's authorized representatives. As such, Doctors Hospital contends that the redacted portions are protected by the opinion work product privilege, notwithstanding Amendment 7.

This Court first addressed the distinction between fact and opinion work product in State v. Rabin, 495 So.2d 257, 262 (Fla. 3d DCA 1986). This distinction was later recognized by the Florida Supreme Court in Southern Bell Telephone & Telegraph Co. v. Deason, 632 So.2d 1377, 1384 (Fla.1994), and codified in Florida Rules Civil Procedures 1.280(b)(3).² Accordingly, fact work product traditionally protects information which relates to the case and is gathered in anticipation of litigation, while opinion work product consists primarily of the attorney's mental impressions, conclusions, opinions and theories concerning litigation. See Deason, 632 So.2d at 1384; Rabin, 495 So.2d at 262.

Generally, fact work product is susceptible to disclosure based on considerations of need and relevance. See W. Bend Mut. Ins. Co. v. Higgins, 9 So.3d 655, 657–58 (Fla. 5th DCA 2009). Conversely, and because proper representation demands that counsel be able to assemble information and plan her strategy without undue interference, opinion work product is generally afforded absolute immunity. See Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970); Rabin, 495 So.2d at 263 (noting an attorney has a significant privacy interest in non-disclosure of opinion work product); Ford Motor Co. v. Hall–Edwards, 997 So.2d 1148, 1152–53.

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...