Columbia Hosp. of South Broward v. Fain

• Decision Date: 19 August 2009
• Docket Number: No. 4D08-4578.,4D08-4578.
• Citation: 16 So.3d 236
• Parties: COLUMBIA HOSPITAL CORPORATION OF SOUTH BROWARD d/b/a Westside Regional Medical Center, a foreign for profit corporation, Petitioner, v. Rebecca FAIN, as Personal Representative of the Estate of William Thomas Fain, deceased, Respondent.
• Court: Florida District Court of Appeals

16 So.3d 236

COLUMBIA HOSPITAL CORPORATION OF SOUTH BROWARD d/b/a Westside Regional Medical Center, a foreign for profit corporation, Petitioner, v. Rebecca FAIN, as Personal Representative of the Estate of William Thomas Fain, deceased, Respondent.

No. 4D08-4578.

District Court of Appeal of Florida, Fourth District.

August 19, 2009.

Stephen J. Bronis, Walter J. Tache, and Jessica Zagier Wallace of Carlton Fields, PA, Miami, for petitioner.

C. David Durkee of Roberts & Durkee, P.A., and Christopher J. Lynch of Hunter, Williams & Lynch, P.A., Coral Gables, for respondent.

ON REHEARING

POLEN, J.

We deny petitioner's Motion for Clarification, Rehearing or Rehearing En Banc, and for Certification of Questions to the Florida Supreme Court, but substitute the following opinion in place of our previously issued one.

Columbia Hospital Corporation of South Broward (Columbia), d/b/a Westside Regional Medical Center, petitions for a writ of certiorari seeking to quash a trial court order that denied Columbia's objections to a plaintiff's request for discovery. This case involves Article X, Section 25 of the Florida Constitution, enacted as "Amendment 7," regarding a patient's right to discover records related to adverse medical incidents. Columbia raises numerous challenges to the trial court's order and Amendment 7 in general. We conclude that Amendment 7 does not violate the Constitution of the United States as argued by Columbia. We also conclude that certain arguments raised by Columbia are not ripe for decision and that no basis for certiorari relief is established. We, therefore, deny the petition.

Facts

The facts pertinent to this proceeding are simple and not in dispute. Decedent William Fain, while an inpatient at Westside Regional Medical Center, fell from a hospital bed and subsequently died. Fain's estate sued Columbia for medical negligence. In discovery, and pursuant to Amendment 7, the estate requested incident reports for Fain's fall and of all adverse medical incident reports involving falls of patients under "fall precautions" within the last five years. Columbia objected to the requests on a number of grounds, including an argument that incident reports were protected work product. The trial court entered an order overruling many of Columbia's objections and requiring further proceedings on others. In this petition, Columbia seeks to quash the trial court's order.

Jurisdiction

To the extent the petition argues that the trial court's order requires production of materials that are privileged or protected, a threshold showing of irreparable harm necessary to invoke this court's certiorari jurisdiction is established. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). The requested information constitutes "cat out of the bag" material: the inappropriate discovery of this information cannot adequately be remedied on direct appeal. See id. at 94. We discuss each of Columbia's arguments in turn.

Work Product and Trial Preparation Protections

Columbia argues that the trial court departed from the essential requirements of law because it failed to consider or rule on its objections that some of the requested materials were protected as attorney work product or as trial preparation materials. Fla. R. Civ. P. 1.280(b)(3). As it did below, Fain's estate concedes that materials requested pursuant to Amendment 7 are subject to work product or attorney-client privilege objections.

The parties argue that, in the advisory opinion approving of the Amendment 7 ballot initiative, the Florida Supreme Court found that the amendment would not affect the "work product privilege" under Rule 1.280. In re Advisory Opinion to the Atty. Gen. re Patients' Right to Know About Adverse Medical Incidents, 880 So.2d 617 (Fla.2004). In that opinion, however, the Florida Supreme Court merely rejected the argument raised by the sole opponent to the ballot initiative. The opponent had argued that the amendment would impact judicial functions by affecting the protections of Rule 1.280. The Court noted:

Contrary to the clear effect upon the above two statutes [which provided for limited discoverability of peer review proceedings], the amendment does not expressly affect either rule 1.280(c) or the attorney-client privilege, and there is no evidence of any intent to do so. Any effect on the rule or the privilege is purely speculative; and, even if true, any such effect would not rise to the level of "substantially" altering or performing a function of the judiciary.

880 So.2d at 621. The Florida Supreme Court did not rule that a request for materials under Amendment 7 can be denied based on an objection that an adverse incident report is protected fact work product. The Court was responding to an argument that the amendment would affect more than one branch of government.

Prior to the passage of Amendment 7, a hospital's incident reports have generally been considered protected as fact work product and discoverable only upon a showing of need and undue hardship. N. Broward Hosp. Dist. v. Button, 592 So.2d 367, 368 (Fla. 4th DCA 1992); Mount Sinai Med. Ctr. v. Schulte, 546 So.2d 37 (Fla. 3d DCA 1989); Bay Med. Ctr. v. Sapp, 535 So.2d 308, 312 (Fla. 1st DCA 1988); Humana of Fla., Inc., v. Evans, 519 So.2d 1022 (Fla. 5th DCA 1987).

Amendment 7 provides that "any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident" are subject to discovery. Art. X, § 25(a), Fla.Const. (emphasis added). It is not clear that a provider or healthcare facility may, after the amendment, continue to refuse to provide an adverse medical incident report based on a fact work product objection. A distinction may need to be drawn between fact work product and opinion work product.

We need not decide this issue as it is not ripe for review. As in Morton Plant Hospital Ass'n v. Shahbas ex rel. Shahbas, 960 So.2d 820, 825 (Fla. 2d DCA 2007), in addition to the work product objections, Columbia argued that the estate's discovery requests were overly broad, irrelevant, and unduly burdensome. The trial court made a preliminary determination that the materials sought were "otherwise discoverable." Pursuant to Gosman v. Luzinski, 937 So.2d 293, 295 (Fla. 4th DCA 2006), a party need not file a privilege log until the trial court has decided as a preliminary matter whether the materials sought are "otherwise discoverable." The estate concedes that, as in Shahbas, Columbia may now file a privilege log and assert its claim of work product protection. 960 So.2d at 826. Because the trial court has not decided the question of whether any of the materials sought are protected, we decline to decide the question for the first time in this proceeding.

Irrelevance, Overbreadth, and Burdensomeness Objections

Columbia argued that the estate's discovery requests are irrelevant, overbroad, and unduly burdensome. The trial court correctly recognized that these are not proper objections to discovery of Amendment 7 materials. The Second District in Shahbas clearly held that "burdensome is not a relevant consideration under Amendment 7." 960 So.2d at 826. Further, Amendment 7 contains no requirement that the information sought by a patient be relevant to any pending medical malpractice action or medical care decision. Id. at 825.

This court recently rejected an attempt to impose a "standing" requirement on Amendment 7 discovery which had sought to limit discovery to those who were physically patients at a facility, or actual prospective patients seeking the materials for a "proper purpose." Amisub N. Ridge Hosp., Inc. v. Sonaglia, 995 So.2d 999, 1001 (Fla. 4th DCA 2008) (Notice to Invoke Discretionary Jurisdiction pending in SC09-132). As we recognized in Sonaglia, irrelevance is not a proper objection to a request for Amendment 7 materials. Id. at 1001.

Amendment 7 defines a "patient" broadly to include almost anyone. No reasonable method exists through which Amendment 7 could be limited to requests made with a "proper purpose," nor does the amendment in any way limit (nor could it reasonably limit) to whom information could be revealed once disclosed pursuant to Amendment 7. The purpose of Amendment 7 was to lift the shroud of secrecy from records of adverse medical incidents and make them widely available.

In Florida Hospital Waterman, Inc. v. Buster, 984 So.2d 478 (Fla.2008), in addition to finding that Amendment 7 was self-executing and applied retroactively to materials prepared before its passage, the Florida Supreme Court held that the legislature's attempts to limit requests under the amendment to facilities or providers where the party seeking the information was physically a "patient" receiving treatment were unconstitutional. Id. at 493 (finding that section 381.028(7)(a), and other portions of this "implementing" statute were inconsistent with the language of the amendment and unconstitutional).

A request for Amendment 7 materials is not an ordinary discovery request which can be subjected to overbreadth, irrelevance, or burdensomeness objections. Pursuant to the amendment, a "patient" has the absolute right to discover records relating to any adverse medical incident and that right is not conditioned on the discovery being relevant to a pending claim. A litigant in a medical malpractice case clearly qualifies as a "patient" under the amendment and is entitled to discover the information. It is illogical to conclude that the estate could discover information regarding adverse medical incidents outside the context of this litigation but cannot discover the same information as part of its discovery in this case.

Columbia's reliance on language in Wellner v. East Pasco Medical Center, Inc., 975 So.2d 442, 444 (Fla. 2d DCA 2007), is misplaced because in Wellner the court held merely that the denial of an untimely discovery request for Amendment 7 materials was not reversible...