Florida Hosp. Waterman, Inc. v. Buster

• Decision Date: 06 March 2008
• Docket Number: No. SC06-688,No. SC06-912.,SC06-688,SC06-912.
• Parties: FLORIDA HOSPITAL WATERMAN, INC., etc., Petitioner/Cross-Respondent, v. Teresa M. BUSTER, etc., et al., Respondents/Cross-Petitioners. Notami Hospital of Florida, Inc., etc., Appellant/Petitioner, v. Evelyn Bowen, et al., Appellees/Respondents.
• Court: Florida Supreme Court

984 So.2d 478

FLORIDA HOSPITAL WATERMAN, INC., etc., Petitioner/Cross-Respondent, v. Teresa M. BUSTER, etc., et al., Respondents/Cross-Petitioners.

Notami Hospital of Florida, Inc., etc., Appellant/Petitioner, v. Evelyn Bowen, et al., Appellees/Respondents.

No. SC06-688

No. SC06-912.

Supreme Court of Florida.

March 6, 2008.

Rehearing Denied May 12, 2008 as to SC06-688.

Rehearing Denied June 10, 2008 as to SC06-912.

Arthur J. England, Jr. and Daniel M. Samson of Greenberg Traurig, P.A., Miami, Florida; and Mason H. Grower, III and Jack E. Holt, III of Grower, Ketcham, Rutherford, Bronson, Eide and Telan, P.A., Orlando, Florida, for Petitioner/Cross-Respondent.

Christopher V. Carlyle, Shannon McLin Carlyle, and Gilbert S. Goshorn, Jr. of The Carlyle Appellate Law Firm, The Villages, Florida, for Respondents/Cross-Petitioners.

Gail Leverett Parenti of Parenti and Parenti, P.A., Miami, Florida, and Andrew Steven Bolin of Macfarlane, Ferguson, and McMullen, Tampa, Florida, on behalf of The Florida Defense Lawyers Association; Stephen H. Grimes and Jerome W. Hoffman of Holland and Knight, LLP, Tallahassee, Florida, on behalf of Florida Hospital Association, Inc.; James M. Barclay of Ruden, McClosky, Smith, Schuster, and Russell, P.A., Tallahassee, Florida, on behalf of Florida Patient Safety Corporation, Inc.; Paul D. Jess, General Counsel of Academy of Florida Trial Lawyers, Inc., Tallahassee, Florida, on behalf of The Academy of Florida Trial Lawyers; and Philip M. Burlington of Burlington and Rockenbach, P.A., West Palm Beach, Florida, and Lincoln J. Connolly of Rossman, Baumberger, Reboso, and Spier, P.A., Miami, Florida, on behalf of Floridians for Patient Protection, Inc., for Amici Curiae.

Steven Wisotsky and Stephen J. Bronis of Zuckerman Spaeder, LLP, Miami, Florida, and Charles T. Shad of Saalfield, Shad, Jay, Lucas, and Stokes, P.A., Jacksonville, Florida, for Appellant/Petitioner.

Thomas K. Equels, J. Stanley Chapman, and Judson H. Orrick of Holtzman Equels, Tallahassee, Florida, for Appellees/Respondents.

Stephen H. Grimes and Jerome W. Hoffman of Holland and Knight, LLP, Tallahassee, Florida, on behalf of Florida Hospital Association, Inc.; Paul D. Jess, General Counsel of Academy of Florida Trial Lawyers, Inc., Tallahassee, Florida, on behalf of The Academy of Florida Trial Lawyers; and Philip M. Burlington of Burlington and Rockenbach, P.A., West Palm Beach, Florida, and Lincoln J. Connolly of Rossman, Baumberger, Reboso, and Spier, P.A., Miami, Florida, on behalf of Floridians for Patient Protection, Inc., for Amici Curiae.

PER CURIAM.

These cases are before the Court for review of the decisions of the First and Fifth District Courts of Appeal in Notami Hospital of Florida, Inc. v. Bowen, 927 So.2d 139 (Fla. 1st DCA 2006), and Florida Hospital Waterman, Inc. v. Buster, 932 So.2d 344 (Fla. 5th DCA 2006). Both decisions address the scope of article X, section 25 of the Florida Constitution, a ballot initiative passed by the voters in November 2004 and known as amendment 7, the Patients' Right to Know About Adverse Medical Incidents.¹ The Fifth District in Buster certified three questions of great public importance to this Court, and the First District in Notami Hospital held a statute unconstitutional and certified conflict with Buster. We have jurisdiction. See art. V, § 3(b)(1), § 3(b)(4), Fla. Const.

For the reasons expressed below, we approve in part the decision of the Fifth District holding amendment 7 to be self-executing and we affirm the First District's holdings that the amendment is self-executing and retroactive and its provisions apply to records existing prior to its passage. We also conclude that several subsections of section 381.028, Florida Statutes (2005), conflict with amendment 7 and are therefore unconstitutional, but we sever those provisions and hold that the remainder of the statute is valid.

I. FACTS AND PROCEDURAL HISTORY

Each of these cases addresses amendment 7, approved by the voters on November 2, 2004, and codified as article X, section 25 of the Florida Constitution. The amendment provides:

Section 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.

(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. The effective date and severability provision provides that "[t]his amendment shall be effective on the date it is approved by the electorate." Advisory Opinion to the Att'y Gen. re Patients' Right to Know About Adverse Med. Incidents, 880 So.2d 617, 619 (Fla. 2004) ("Patients' Right to Know").² The ballot title for the proposed amendment was "Patients' Right to Know About Adverse Medical Incidents," and the ballot summary accompanying the proposed amendment read as follows:

Current Florida law restricts information available to patients related to investigations of adverse medical incidents, such as medical malpractice. This amendment would give patients the right to review, upon request, records of health care facilities' or providers' adverse medical incidents, including those which could cause injury or death. Provides that patients' identitie [sic] should not be disclosed.

Id.

After the passage of the amendment, the Legislature enacted chapter 2005-265, Laws of Florida, effective June 20, 2005, dealing with the same subject as amendment 7.³ This is now codified at section 381.028 in the Florida Statutes.

Buster and Notami Hospital

In each of the cases before us, medical malpractice actions were instituted against the defendant hospitals. During discovery, the plaintiffs sought production of documents in Buster relating to the investigation of the adverse medical incident at issue, and in Notami Hospital, relating to the selection, retention, or termination of Dr. Robert Pendrak, M.D. Each hospital objected, claiming the information sought was confidential pursuant to various statutory privileges existing prior to the passage of amendment 7. In both cases, the trial court rejected these objections and held that amendment 7 was self-executing and applied to existing documents and that any conflicting legislation was subordinate to the constitutional amendment.

The hospitals each sought review by certiorari in the district court, arguing that the trial court's rulings departed from the essential requirements of law. In Buster, the Fifth District agreed with the trial court that amendment 7 was self-executing and allowed for discovery, but disagreed that it could be applied to existing records. 932 So.2d at 356. The First District held in Notami Hospital that amendment 7 was self-executing, that it could be retroactively applied to existing records, and that section 381.028 was unconstitutional. 927 So.2d at 145. The court certified conflict with Buster on the question of retroactivity. Id. The Fourth District subsequently cited and adopted the reasoning of Notami Hospital in North Broward Hospital District v. Kroll, 940 So.2d 1281 (Fla. 4th DCA 2006), finding amendment 7 to be self-executing and retroactive as well as finding section 381.028 to be unconstitutional. Id. at 1282-83. The Kroll court likewise certified conflict with Buster. Id. at 1283.

II. THIS APPEAL

The primary areas of overlap between the two decisions on review involve whether amendment 7 is self-executing and whether it can be applied retroactively, and whether the provisions of section 381.028, Florida Statutes (2005), are constitutional. Accordingly, we address only those issues.

III. GOVERNING LAW and ANALYSIS

Since all of the issues we consider are ones of constitutional or statutory interpretation, this Court's review is de novo. See Zingale v. Powell, 885 So.2d 277, 280 (Fla.2004) ("Although we take into consideration the district court's analysis on the issue, constitutional interpretation, like statutory interpretation, is performed de novo."). In Zingale, while recognizing the fundamental nature of a constitutional edict, we emphasized that the principles governing constitutional interpretation largely parallel those of statutory interpretation. Id. at 282 (citing Coastal Fla. Police Benev. Ass'n...