Adventist Health System/Sunbelt, Inc. v. Watkins, 95-1700

• Citation: 675 So.2d 1051
• Decision Date: 05 July 1996
• Docket Number: No. 95-1700,95-1700
• Parties: 21 Fla. L. Weekly D1571 ADVENTIST HEALTH SYSTEM/SUNBELT, INC., etc., Appellant, v. John D. WATKINS and Ginny B. Watkins, His Wife, Appellees.
• Court: Court of Appeal of Florida (US)

Page 1051

675 So.2d 1051

21 Fla. L. Weekly D1571

ADVENTIST HEALTH SYSTEM/SUNBELT, INC., etc., Appellant, v. John D. WATKINS and Ginny B. Watkins, His Wife, Appellees.

No. 95-1700.

District Court of Appeal of Florida Fifth District.

July 5, 1996.

Rachel K. Nunn and Mason H. Grower, III, of Taraska, Grower & Ketcham, P.A., Orlando, for Appellant.

Harry K. Anderson, Jr., and J. Scott Murphy, Orlando, and James R. Provencher, Orlando, for Appellees.

PETERSON, Chief Judge.

Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital, appeals a judgment entered pursuant to a jury verdict rendered in a medical malpractice action. John D. Watkins initiated the action alleging that he incurred injuries when he was dropped by hospital personnel attempting to move him from his bed to a gurney. The drop was not noted on Watkins' patient chart.

Florida Hospital complains that the trial court erred by admitting into evidence an affidavit prepared by its expert witness, Dr. Spiegel, in an unrelated matter. The affidavit had been prepared for use in the pre-suit screening process in an earlier incident at another hospital in which the patient had also been allegedly dropped. The affidavit became important when Watkins' counsel cross-examined Dr. Spiegel. He was asked whether he had ever reviewed a case in which a patient claimed to have been dropped following surgery. When he denied it, Watkins' counsel reminded him that he had executed an affidavit just a few months earlier in such a case. He admitted executing it but then said it was not the same circumstances as in the instant case. He later said that he did not remember the circumstances. The affidavit was then admitted into evidence over the objection of Florida Hospital. Florida Hospital argues that the affidavit is inadmissible under section 766.106(5), Florida Statutes (1995), which provides:

No statement, discussion, written document, report, or other work product generated by the presuit screening process is discoverable or admissible in any civil action for any purpose by the opposing party. All participants, including, but not limited to, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit screening process.

(Emphasis added.) We disagree. Dr. Spiegel's affidavit cannot be considered a "work product generated by the presuit screening process" of the instant case. The affidavit is not being submitted by an "opposing party" to the patient referred to in Dr. Spiegel's affidavit, nor can Dr. Spiegel be considered a "participant" in the presuit screening process of the instant case. In fact, Dr. Spiegel's involvement in this case by his own admission is limited to giving an expert medical opinion after review of the Watkins' depositions and Mr. Watkins' medical records.

The distinguishing feature of Dr. Spiegel's affidavit is that it refers to a patient in an unrelated, separate medical malpractice case. The two cases cited by appellant that address privileged presuit material under Chapter 766, Florida Statutes (1995), concern an opposing party attempting to use materials generated during the presuit screening process of that particular opposing party's case. Rub v. Williams, 611 So.2d 1328 (Fla. 3d DCA 1993) (petitioner's own unsworn statement taken during the medical malpractice presuit screening process of petitioner's case was...