Lakeland Regional Medical Center v. Neely, 2D08-4102.

• Decision Date: 08 May 2009
• Docket Number: No. 2D08-4102.,2D08-4102.
• Citation: 8 So.3d 1268
• Parties: LAKELAND REGIONAL MEDICAL CENTER, a Florida corporation, Petitioner, v. Alexis Leigh NEELY, a minor, by and through her parents, Ronica and Bryan NEELY; Ronica and Bryan Neely, individually; Gracia Maria Damian, M.D.; and Lakeland OB-GYN, P.A., Respondents.
• Court: Florida District Court of Appeals

8 So.3d 1268

LAKELAND REGIONAL MEDICAL CENTER, a Florida corporation, Petitioner, v. Alexis Leigh NEELY, a minor, by and through her parents, Ronica and Bryan NEELY; Ronica and Bryan Neely, individually; Gracia Maria Damian, M.D.; and Lakeland OB-GYN, P.A., Respondents.

No. 2D08-4102.

District Court of Appeal of Florida, Second District.

May 8, 2009.

Kelly Jo Lamb and Lisa L. Cullaro of Morgan, Lamb, Goldman & Valles, P.A., Tampa, for Petitioner.

Christopher V. Carlyle and Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages; and Franklin B. Glinn of Glinn & Somera, P.A., Miami, for Respondents.

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

Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach; and Lincoln J. Connolly of Rossman, Baumberger, Reboso, Spier & Connolly, P.A., Miami, for Amicus Curiae Florida Justice Association.

ALTENBERND, Judge.

Lakeland Regional Medical Center (LRMC) petitions this court for a writ of certiorari quashing an order of the trial court that required LRMC to produce twelve reports of adverse medical incidents prepared in accordance with Florida law.¹ LRMC submits that these reports are protected from disclosure by the common law work product doctrine. Constrained by the Florida Supreme Court's decision in Florida Hospital Waterman, Inc. v. Buster, 984 So.2d 478 (Fla.2008), we determine that the trial court did not depart from the essential requirements of the law in ordering the production of reports of adverse medical incidents prepared in anticipation of litigation. We accordingly deny the petition.

In the cause of action before the trial court, Ronica and Bryan Neely, on behalf of their daughter, have presented allegations of medical malpractice against Dr. Gracia Damian and Lakeland OB-GYN. Dr. Damian and her clinic use the facilities of LRMC for deliveries and surgery. In May 2008, the Neelys served a subpoena duces tecum on LRMC seeking several categories of medical records. One category consisted of records of reports of adverse medical incidents involving Dr. Damian, which the Neelys requested based on article X, section 25, of the Florida Constitution, titled "Patients' right to know about adverse medical incidents" and commonly known as Amendment 7. LRMC objected to the production, filed a privilege log identifying fourteen reports, and moved for a protective order, asserting the reports were protected under the work product doctrine because they had been prepared in anticipation of litigation. After conducting a hearing on the issue in July 2008, the trial court denied LRMC's motion for a protective order and effectively required LRMC to produce twelve of the fourteen reports of adverse medical incidents.

As this court has recognized, "[c]ertiorari review `is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.'" Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So.2d 445, 448 (Fla. 2d DCA 2002) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)). Thus, "a petition for writ of certiorari is appropriate to remedy situations in which hospitals have been wrongly ordered to disclose statutorily privileged documents." Tarpon Springs Gen. Hosp. v. Hudak, 556 So.2d 831, 832 (Fla. 2d DCA 1990).

In seeking reports of adverse medical incidents, the Neelys rely on the ballot initiative known as Amendment 7, which was approved by the voters on November 2, 2004, and codified as article X, section 25, of the Florida Constitution. Before the passage of Amendment 7, Florida law, by statute, restricted discovery in a civil or administrative action of investigations, proceedings, and records of a health care provider's review of its staff members and physicians. See §§ 395.0191(8), .0193(8), 766.101(5), Fla. Stat. (2007). The legislature granted these protections to health care providers in conjunction with, and in order to foster, state-mandated peer review requirements. See generally Holly v. Auld, 450 So.2d 217 (Fla.1984). Against this backdrop of statutory protections, the Florida Constitution now provides that a patient has "a right to access 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.

LRMC argues that Amendment 7's application does not extend to records protected under the common law work product doctrine. Specifically, LRMC contends that Amendment 7 was not intended to apply to materials protected by the work product doctrine and that the Amendment's retroactive application to preexisting reports of adverse medical incidents would violate the Florida Constitution. We conclude that these arguments are foreclosed by the supreme court's decision in Buster.

In Buster, the Florida Supreme Court addressed Amendment 7's application to existing medical records protected under sections 395.0191(8), 395.0193(8), and 766.101(5), as referenced above. 984 So.2d at 486. As broadly construed by the court in Buster, Amendment 7 "remove[s] any barrier to a patient's discovery of adverse medical incident information, including the peer review protections provided by the statute." Amisub N. Ridge Hosp., Inc. v. Sonaglia, 995 So.2d 999, 1001 (Fla. 4th DCA 2008).

In reaching its conclusion, the supreme court in Buster employed the two-part retroactivity analysis of Dade County v. Chase Federal Housing Corp., 737 So.2d 494 (Fla.1999). Under the first part of this analysis, the court read Amendment 7 as intended to apply to existing medical records protected from discovery "by overriding and supplanting existing statutory provisions that limited access." 984 So.2d at 488. Turning to the second part of its retroactivity analysis, the court determined that Amendment 7 could be constitutionally applied to preexisting records because the statutes protecting such records did not establish a substantive, vested right on which medical providers could rely. Id. at 490. The court thus concluded that the Amendment provided access to existing histories of adverse medical incidents. Id. at 492.

The supreme court's analysis in Buster controls our determination in this case that the trial court did not depart from the essential requirements of the law. First, like the statutory privileges at issue in Buster, work product materials are not exempted under the language of Amendment 7. The court summarized Amendment 7 as intended to "do away with existing restrictions on a patient's right to access a medical...