BALDWIN v. SHANDS TEACHING Hosp.

• Citation: 45 So.3d 118
• Decision Date: 23 September 2010
• Docket Number: No. 1D10-127.,1D10-127.
• Parties: Michael BALDWIN and Stephanie Baldwin, his wife, Petitioners, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC. and University of Florida Board of Trustees a/k/a University of Florida, Respondents.
• Court: Court of Appeal of Florida (US)

45 So.3d 118

Michael BALDWIN and Stephanie Baldwin, his wife, Petitioners,

v.SHANDS TEACHING HOSPITAL AND CLINICS, INC. and University of Florida Board of Trustees a/k/a University of Florida, Respondents.

No. 1D10-127.

District Court of Appeal of Florida,First District.

Sept. 23, 2010.

COPYRIGHT MATERIAL OMITTED.

Lincoln J. Connolly, of Rossman, Baumberger, Reboso, Spier & Connolly, P.A., Miami, for Petitioners.

Susan L. Kelsey, of Kelsey Appellate Law Firm, P.A., Tallahassee, for Respondents.

CORRECTED OPINION

KAHN, J.

We deny respondent Shands Teaching Hospital & Clinic, Inc.'s (Shands) “Motion for Rehearing and for Rehearing En Banc.” We withdraw our original opinion dated July 20, 2010, and substitute this corrected opinion.

Petitioners Michael and Stephanie Baldwin, a husband and wife, seek certiorari review of the circuit court's December 2009 order denying their motion to compel a non-party, Shands, to produce “all records of adverse medical incidents in its possession” regarding Mr. Baldwin-including a Shands risk management incident report and a Shands peer review form-pursuant to article X, section 25(a) of the Florida Constitution (Amendment 7). The trial court denied petitioners' supplemental motion to compel and/or motion for reconsideration. Because the requested documents are Shands' records relating to an adverse medical incident, the trial court failed to comply with the requirements of Amendment 7. We grant the writ, quash the first paragraph of the order, and require Shands to produce all records of adverse medical incidents.

I. FACTUAL AND PROCEDURAL BACKGROUND

This litigation commenced with the Baldwins' medical negligence claim against respondent University of Florida Board of Trustees, a/k/a University of Florida (UF). The complaint alleges UF physicians negligently intubated 48-year-old Mr. Baldwin for general anesthesia before a scheduled appendectomy at Shands, causing a perforation that injured his hypopharynx with severe damage to his larynx and throat. Count One alleged medical malpractice, Count Two alleged loss of consortium, and Count Three alleged unjust enrichment. Shands has conceded that after Mr. Baldwin's admission to the hospital for an emergent appendectomy, and during the process of providing him with a necessary airway for the necessary anesthesia, a 6-mm perforation of his hypopharynx occurred. At the hearing below, counsel for UF stated, without an objection, that both Drs. Larkins and Good, the two physicians present at the intubation, had testified they did not know when the injury occurred.

Section 395.0197(1), Florida Statutes (2005), requires every licensed facility, “as a part of its administrative functions, [to] establish an internal risk management program” including, in subsection (1)(a), “investigation and analysis of the frequency and causes of general categories and specific types of adverse incidents to patients.” Petitioners moved to compel Shands to produce its risk management incident report and peer review record (which were identified in Shands' privilege log) and any other records of adverse medical incidents involving Mr. Baldwin. Because Mr. Baldwin was under the effects of pre-anesthesia when the injury occurred and could not recall what happened, petitioners argued these records are the only accurate account of the injury, cannot be substituted, and thus are material to their medical negligence claim.

Shands opposed the request on the ground that its own investigation concluded the incident did not involve negligence and was, therefore, not an “adverse medical incident” requiring disclosure of the records under Amendment 7. After a hearing, the trial court refused to require production of the two Shands documents. Petitioners now seek a writ of certiorari quashing the order and instructing Shands to produce the risk management incident report and peer review record. The question is whether an entity subject to Amendment 7 may avoid the dictate of the amendment by determining, through its own investigation, that the records sought do not cover an “adverse medical incident.”

II. ANALYSIS

A. Amendment 7

The provision generally known as Amendment 7, adopted in 2004 by Florida's electorate, states:

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.

Art. X, § 25(a), Fla. Const. Amendment 7 thus provides an avenue for patients to get access to records of a health care provider's adverse medical incidents. See Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 486 (Fla.2008). “ ‘[H]ealth care facility’ and ‘health care provider’ have the meaning given in general law related to a patient's rights and responsibilities.” Art. X, § 25(c)(1), Fla. Const. Shands obviously is a health care facility. See, e.g., §§ 381.028(3)(f) (stating “ ‘health care facility’ means a facility licensed under chapter 395”), 395.002(13) (defining “hospital”), and 395.002(17) (stating “ ‘licensed facility’ means a hospital”), Fla. Stat. (2005).

The primary dispute concerns whether Shands' documents relate to an “adverse medical incident” for purposes of Amendment 7. The amendment defines the term as follows:

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.

Art. X, § 25(c)(3), Fla. Const. The parties agree that while at Shands, Mr. Baldwin suffered an injury. If this event constitutes an “adverse medical incident,” then article X, section 25(a) of the Florida Constitution entitles Mr. Baldwin, who is a “patient” as defined in section 25(c)(2), to “have access to any records” under section 25(c)(4) made or received in the course of the hospital's business relating to the incident.

Construing together the provisions in Amendment 7, petitioners assert two independent grounds why the requested records must be produced. First, because Mr. Baldwin suffered a perforation of the throat during intubation by a UF anesthesiologist, the Baldwins characterize the injury caused by an “act” of a “health care provider” and, thus, an “adverse medical incident” under the language in the first part of the definition of “adverse medical incident.” Second, because the incident involving Mr. Baldwin was “reported to or reviewed by” Shands' risk management and peer review entities, the two requested records are, say the Baldwins, records of an adverse medical incident pursuant to the language in the second part of the definition.

B. Certiorari Jurisdiction

The extraordinary remedy of certiorari relief from a pretrial order requires that petitioners demonstrate the order 1) caused material injury that will remain through the rest of the proceedings and cannot be corrected on appeal from final judgment and 2) departed from the essential requirements of law. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1100 (Fla.1987); Abbey v. Patrick, 16 So.3d 1051, 1053 (Fla. 1st DCA 2009); Venus Labs., Inc. v. Katz, 573 So.2d 993, 994 (Fla. 3d DCA 1991) (on reh'g en banc). Error in the denial of a discovery motion is generally correctible on review of the final judgment; as a jurisdictional threshold, certiorari will respond only to material, irreparable harm continuing through the rest of the proceedings. Some denials of discovery requests, however, cause irreparable injury, in the absence of any practicable way 1) to determine post-judgment the effect of the evidence on the outcome of the trial and 2) to obtain the information via other reasonable means. See Travelers Indem. Co. v. Hill, 388 So.2d 648, 650 (Fla. 5th DCA 1980).

Because the “material injury” and “irreparable effect” elements are jurisdictional, we must analyze them first before considering the merits. See Lakeland Reg'l Med. Ctr., Inc. v. Allen, 944 So.2d 541, 543 (Fla. 2d DCA 2006); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). In Hill, 388 So.2d at 648, the petitioner sought certiorari review of the trial court's denial of a motion to appoint a commissioner to take a deposition in Ohio. Respondent Hill, the plaintiff, had filed a complaint alleging that petitioner/insurer failed to pay a theft loss under an insurance policy issued by petitioner to respondent. See id. at 649. The trial court denied the motion without giving a reason or showing good cause. The petitioner asserted a departure from the essential requirements of law based on the denial of its very substantial right, the importance of the witness' testimony as an essential element of the defense, and the lack of an adequate remedy upon direct appeal from a final judgment. See id. at 650. Granting the writ and quashing the order, the district court stated:

It is difficult to understand how the denial of the right to take the testimony of an alleged material witness can be remedied on appeal since there would be no practical way to determine after judgment what the testimony would be or how it would affect the result. Certiorari is the proper remedy here.

Id.

Relying upon Hill, petitioners argue the requested materials are clearly discoverable on two grounds under Amendment 7. First, they are material and go to the heart of the case, so that no other documents can be substituted for the ones in Shands' custody. Second, no method would allow a determination post-judgment as to how the...