Florida Hosp. Waterman, Inc. v. Buster, 5D05-2195.

CourtCourt of Appeal of Florida (US)
Citation932 So.2d 344
Docket NumberNo. 5D05-2195.,5D05-2195.
PartiesFLORIDA HOSPITAL WATERMAN, INC., etc., Petitioner, v. Teresa M. BUSTER, as personal Representative of the Estate of Larry Buster, Deceased, et al., Respondents.
Decision Date10 March 2006
932 So.2d 344
FLORIDA HOSPITAL WATERMAN, INC., etc., Petitioner,
v.
Teresa M. BUSTER, as personal Representative of the Estate of Larry Buster, Deceased, et al., Respondents.
No. 5D05-2195.
District Court of Appeal of Florida, Fifth District.
March 10, 2006.

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Mason H. Grower, III, Jack E. Holt and Ramon Vazquez of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Petitioner.

Christopher V. Carlyle, Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., of counsel, of The Carlyle Appellate Law Firm, The Villages, for Respondent Teresa M. Buster.

Stephen H. Grimes and Jerome W. Hoffman of Holland & Knight LLP, Tallahassee, Amicus Curiae for Florida Hospital Association, Inc.

Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach and Lincoln J. Connolly of Rossman, Baumberger, Reboso & Spier, P.A., Miami, Amicus Curiae for Floridians for Patient Protection, Inc.

SAWAYA, J.


Of the several constitutional amendments approved by the voters in 2004,1 we are called upon to consider the provisions of article X, section 25 of the Florida Constitution, commonly known as Amendment 7 or the "Patients' Right To Know Amendment." Amendment 7 provides, in pertinent part, that "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." Because Amendment 7 was placed on the ballot through the citizens' initiative process,2 its provisions did not emerge from the cauldron

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of the legislative process where, after debate and deliberation, the body politic bespeaks the will of the people. Through adoption of Amendment 7, the people have spoken directly for themselves.

Amendment 7 has spawned a frenzy of litigation wherein litigants and trial courts have struggled to discern its purpose and the extent of its application. The litigation now before this court presents us with the following issues to resolve: 1) does Amendment 7 preempt statutory privileges afforded health care providers' self-policing procedures to the extent that information obtained through those procedures is discoverable during the course of litigation; 2) is Amendment 7 self-executing; and 3) should Amendment 7 be applied prospectively or retroactively. In essence, resolution of these issues involves a search for the intended meaning of the provisions of Amendment 7. That this is no easy task is a fact best illustrated by the disparate conclusions reached by the several circuit courts that have attempted to decide these issues.3 We undertake resolution of these issues by discussing the factual and procedural background and the appropriate standard of review, after which we analyze each issue in the order previously presented. We parenthetically note that the issue whether the information gathered in accordance with the provisions of Amendment 7 is admissible into evidence in trial proceedings is not an issue before us and will not be addressed.

Factual and Procedural Background

A detailed discussion of the underlying facts of the litigation between the parties is not necessary to resolve the issues presented to us. Suffice it to say that Respondent, Teresa Buster, as personal representative of the estate of Larry Buster, brought a medical malpractice action against Florida Hospital Waterman, Inc. (the Hospital) and the other respondents, Jeffrey B. Keeler, M.D., and Keller & Goodman, M.D., P.A. As part of the discovery, Buster sought production of documents relating to the investigation of the decedent's death and any medical incidents of negligence, neglect, or default of any health care provider who rendered services to the decedent. The Hospital objected and filed a motion for a protective order, relying on various statutory privileges and arguing that Amendment 7 does not apply.

Emanating from a hearing on the objection and motion was the trial court's order overruling the Hospital's objection and requiring the Hospital to produce the discovery that the Hospital claims was privileged. The court held that Amendment 7 is self-executing, should be retroactively applied, and any legislation to the contrary is subordinate to the constitutional amendment. Accordingly, the court ordered the production of documents and information pertaining to incidents dating back to December 25, 2000.4 Florida Hospital seeks

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certiorari review of that order, arguing that it constitutes a departure from the essential requirements of law, causing irreparable harm because it requires the production of privileged information and improperly gives self-executing, retroactive effect to Amendment 7.

Standard of Review

"While several standards of review are utilized to review petitions for writs of certiorari, when an appellate court reviews [a] non-appealable non-final order rendered by a trial court, the party seeking review must demonstrate that the trial court departed from the essential requirements of law and that the resulting harm is irreparable and cannot be remedied on appeal following final judgment." Dep't of Children & Families v. L.D., 840 So.2d 432, 435 (Fla. 5th DCA 2003) (citing Belair v. Drew, 770 So.2d 1164 (Fla.2000); Jaye v. Royal Saxon, Inc., 720 So.2d 214 (Fla. 1998); Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987); S.H. v. Dep't of Children & Families, 769 So.2d 452 (Fla. 5th DCA 2000)). Hence, this court has consistently held that certiorari is the appropriate vehicle to challenge non-final orders compelling the discovery of information claimed to be privileged. See Cape Canaveral Hosp., Inc. v. Leal, 917 So.2d 336 (Fla. 5th DCA 2005); Beverly Enters.-Fla., Inc. v. Ives, 832 So.2d 161 (Fla. 5th DCA 2002), review denied, 845 So.2d 890 (Fla.2003).

Does Amendment 7 Preempt Statutory Privileges Afforded Health Care Providers' Self-policing Procedures to the Extent that Information Obtained in Accordance with Those Procedures is Discoverable During the Course of Litigation

Because resolution of this issue requires that we determine the meaning of Amendment 7, we proceed with our analysis de novo. Zingale v. Powell, 885 So.2d 277 (Fla.2004). Applying rules that parallel the principles that guide us in statutory interpretation, we must forego any construction that would defeat the intent of the framers of the amendment and the people who enacted it. Id. at 282 ("Such a provision must never be construed in such manner as to make it possible for the will of the people to be frustrated or denied."); see also Coastal Fla. Police Benev. Ass'n, Inc. v. Williams, 838 So.2d 543, 549 (Fla. 2003). Amendment 7 provides:

§ 25. Patients' right to know about adverse medical incidents.

(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.

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(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.

We must read these provisions in pari materia and construe the amendment as a whole "in order to ascertain the general purpose and meaning of each part; each subsection, sentence, and clause must be read in light of the others to form a congruous whole." Dep't of Envtl. Prot. v. Millender, 666 So.2d 882, 886 (Fla.1996); see also Bush v. Holmes, 919 So.2d 392 (Fla.2006); Physicians Healthcare Plans, Inc. v. Pfeifler, 846 So.2d 1129, 1134 (Fla. 2003). Unlike statutory construction, "we have an obligation to provide `a broader and more liberal construction' of constitutional provisions." Coastal Fla. Police Benev. Ass'n, Inc., 838 So.2d at 549 ("`Consequently, courts are far less circumscribed in construing language in the area of constitutional interpretation than in the realm of statutory construction. When adjudicating constitutional issues, the principles, rather than the direct operation or literal meaning of the words used, measure the purpose and scope of a provision.'") (quoting Fla. Soc'y of Ophthalmology v. Fla. Optometric Ass'n, 489 So.2d 1118, 1119 (Fla.1986)).

Subsection (a) provides that "patients" may obtain "any records" relating to an "adverse medical incident." The term "patient" is defined...

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    ...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 co......
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