Edwards v. Thomas

• Decision Date: 26 October 2017
• Docket Number: No. SC15–1893,SC15–1893
• Citation: 229 So.3d 277
• Parties: Amber EDWARDS, Petitioner, v. Larry D. THOMAS, M.D., et al., Respondents.
• Court: Florida Supreme Court

229 So.3d 277

Amber EDWARDS, Petitioner,

v.Larry D. THOMAS, M.D., et al., Respondents.

No. SC15–1893

Supreme Court of Florida.

[October 26, 2017]

Kara Berard Rockenbach and Kristi Bergemann Rothell, Methe & Rockenbach, P.A., West Palm Beach, Florida, for Petitioner

Amy L. Dilday, McCumber, Daniels, Buntz Hartig & Puig, P.A., Tampa, Florida; for Respondent

LEWIS, J.

On November 2, 2004, the citizens of Florida voted to amend their constitution, adding in part the "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. This language was tested in the decision of the Second District Court of Appeal in Bartow HMA, LLC v. Edwards, 175 So.3d 820 (Fla. 2d DCA 2015). Because the district court expressly construed a provision of the Florida Constitution, this Court has jurisdiction to review the decision. See art. V, § 3(b)(3), Fla. Const. We accept that jurisdiction and analyze the significance of that constitutional provision in this case.

FACTUAL AND PROCEDURAL BACKGROUND

While in Florida, Amber Edwards developed stomach pain and was diagnosed with having gallstones

. A laparoscopic cholecystectomy was scheduled and performed at Bartow Regional Medical Center (Bartow) on May 9, 2011. Bartow assigned Dr. Larry D. Thomas, M.D., to perform the surgery. During the procedure, Thomas failed to identify Edwards's common bile duct, cut her common bile duct during surgery, and failed to timely recognize that he had done so. After suffering from severe stomach pain for multiple days post-operation, Edwards returned to Bartow's emergency room, where Thomas's error was discovered. Upon discovering the severed common bile duct, Edwards was transferred to Tampa General Hospital for emergency corrective surgery.

Edwards ultimately sued Bartow and Thomas for medical negligence, including negligent hiring and retention. Edwards served a Request to Produce on Bartow on July 30, 2013, pursuant to article X, section 25 of the Florida Constitution, which is commonly referred to as Amendment 7, requesting a number of records relating to adverse medical incidents that occurred at Bartow. Bartow objected to the requested discovery, maintaining "that certain requested records did not relate to 'adverse medical incidents,' were not 'made or received in the course of business,' were protected by attorney-client privilege, and were protected as opinion work product." Pet'r's Br. 3–4. Edwards then filed a motion to compel Bartow to file better responses, which the trial court granted, and Bartow again attempted to frustrate compliance with that court order by asserting the same objections and attaching privilege logs.

In Privilege Log B at 15, 16, and 20, [Bartow] challenged specific reports "relating to attorney requested external peer review" and asserted that they were privileged. Edwards responded by filing a motion for rule to show cause or for an in camera inspection.

The court conducted a hearing on the motion at which it clarified its prior ruling on [Bartow's] objections. The court explained that it had already determined that the documents in [Bartow's] privilege log were privileged. But it had also concluded that Amendment 7 preempted the privileges so that any documents relating to adverse medical incidents were discoverable. The court agreed to conduct an in camera inspection to determine if any of the documents in the privilege logs did not fall within the ambit of Amendment 7.

After the in camera inspection, the court entered [an] order that ... required the production of all documents related to [Bartow's] peer review of adverse medical incidents involving Dr. Thomas including the external peer review reports listed in Privilege Log B at 15, 16, and 20.

Edwards, 175 So.3d at 823.

After being ordered on two occasions to produce the redacted documents that Edwards requested, Bartow then only provided Edwards with its internal peer review documents and filed a petition for writ of certiorari in the Second District Court of Appeal challenging the trial court's order requiring the production of the external peer review reports at issue, which had been reviewed by the external company, M.D. Review. See id.

The Second District granted Bartow's petition and quashed, in part, the trial court's order on the basis that the external reports were not "made or received in the course of business" per Amendment 7's requirements and that they did not relate to an "adverse medical incident." Id. at 824–26. Specifically, the district court examined the meaning of "made or received in the course of business" and concluded that because records created by an expert retained for the purposes of any litigation are not kept in the regular course of business, the external peer review reports were not "made or received in the course of business" for the purposes of Amendment 7. Id. at 824–25. Moreover, the Second District, in addressing whether the reports at issue related to adverse medical incidents, reasoned that M.D. Review does not perform a routine function of reviewing all adverse medical incidents for Bartow when medical negligence or other events occur as specified in Amendment 7. Id. at 825. The peer review provided an expert opinion on the standards of care from time to time when requested on sporadic occasions when litigation appeared to be imminent. Id. at 825–26. Thus, the court concluded that the reports at issue were not part of Bartow's regular or routine peer review process and, accordingly, did not fall within the ambit of Amendment 7. Id. at 826. Since the trial court had previously determined that these reports were privileged, the Second District concluded that they were protected from discovery. Id.

Given its conclusion, the Second District did not fully address Edwards's argument that "Amendment 7 preempts the common law attorney-client and work-product privileges." Id. It did, however, briefly note that, "while no appellate court has ruled on the issue of whether Amendment 7 preempts the attorney-client privilege, [the Second District] has noted that there has been a suggestion to that effect." Id. (citing Bartow HMA, LLC v. Kirkland, 126 So.3d 1247, 1253 (Fla. 2d DCA 2013) ; Morton Plant Hosp. Ass'n v. Shahbas ex rel. Shahbas, 960 So.2d 820, 825 (Fla. 2d DCA 2007) ).

Edwards petitioned this Court to review the Second District's decision based on its express construction of a constitutional provision.¹ This review follows.

Amendment 7

The language of article X, section 25 of the Florida Constitution states in full:

(a) 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.

(b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.

(c) For purposes of this section, the following terms have the following meanings:

(1) The phrases "health care facility" and "health care provider" have the meaning given in general law related to a patient's rights and responsibilities.

(2) The term "patient" means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.

(3) 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.

(4) The phrase "have access to any records" means, in addition to any other procedure for producing such records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records which have been made publicly available by publication or on the Internet may be "provided" by reference to the location at which the records are publicly available.

Art. X, § 25, Fla. Const. (emphasis added). We recently explained that "the purpose of Amendment 7 'was to do away with the legislative restrictions on a Florida patient's access to a medical provider's "history of acts, neglects, or defaults" because such history "may be important to a patient." ' " Charles v. S. Baptist Hosp. of Fla., Inc., 209 So.3d 1199, 1204 (Fla. 2017) (quoting Fla. Hosp. Waterman, Inc. v. Buster (Buster ), 984 So.2d 478, 488 (Fla. 2008) ) cert. denied, 2017 WL 2444641, ––– U.S. ––––, 138 S.Ct. 129, 199 L.Ed.2d 185 (Oct. 2, 2017).²

Moreover, we have also previously discussed the impact of Amendment 7's passage, relying on Judge Sawaya's concluding comments in Florida Hospital Waterman, Inc. v. Buster (Buster II ), 932 So.2d 344 (Fla. 5th DCA 2006) :

We believe that Amendment 7 heralds a change in the public policy of this state to lift the shroud of privilege and confidentiality in order to foster disclosure of information that will allow patients to better determine from whom they should seek health care, evaluate the quality and fitness of health care providers currently rendering service to them, and allow them access to information gathered through the self-policing processes during the discovery period of litigation filed by injured patients or the estates of deceased patients against their health care providers. We have come to this conclusion because we are obliged to interpret and apply Amendment 7

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