Notami Hosp. of Florida, Inc. v. Bowen, 1D05-4149.

• Court: Court of Appeal of Florida (US)
• Citation: 927 So.2d 139
• Docket Number: No. 1D05-4149.,1D05-4149.
• Parties: NOTAMI HOSPITAL OF FLORIDA, INC., d/b/a Lake City Medical Center, Petitioner, v. Evelyn BOWEN and Don Bowen, her husband, John C. Nicely, as Personal Representative of the Estate of Christine Nicely, Pendrak Surgical Group, P.A., and Robert B. Pendrak, M.D., Respondents.
• Decision Date: 21 April 2006

927 So.2d 139 NOTAMI HOSPITAL OF FLORIDA, INC., d/b/a Lake City Medical Center, Petitioner,
v.
Evelyn BOWEN and Don Bowen, her husband, John C. Nicely, as Personal Representative of the Estate of Christine Nicely, Pendrak Surgical Group, P.A., and Robert B. Pendrak, M.D., Respondents. No. 1D05-4149. District Court of Appeal of Florida, First District. April 21, 2006.

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Stephen Bronis and Steven Wisotsky of Zuckerman Spaeder LLP, Miami, & Charles Shad of Saalfield, Shad, Jay, Lucas & Stokes, P.A., Jacksonville, for Petitioner.

Jerome Hoffman of Holland & Knight, Tallahassee & Michael Tanner of Holland & Knight, Jacksonville, as Amici Curiae for Petitioner.

Lisa Shearer Nelson of Holtzman Equels, Tallahassee, for Respondents.

Lincoln Connolly of Rossman, Baumberger, Reboso & Spier, P.A., Miami, & Philip Burlington, of Burlington & Rockenbach, P.A., West Palm Beach, as Amici Curiae for Respondents.

HAWKES, J.

The trial court ruled Amendment 7, codified as article X, section 25, of the Florida Constitution, is self-executing, and section 381.028, Florida Statutes (2005), enacted to implement article X, section 25, is unconstitutional. As a consequence, the trial court ruled Respondents could access previously confidential peer review, risk management, and credentialing documents. Petitioner, Notami Hospital of Florida, Inc., d/b/a Lake City Medical Center, petitions this court for a writ of certiorari, arguing the trial court's rulings depart from the essential requirements of law. We disagree and deny the petition.

Factual Background

The Hospital is a defendant in three medical malpractice actions pending in the

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trial court, which were consolidated for discovery. Each suit alleged Dr. Robert Pendrak performed negligent surgery, resulting in injury or death to Respondents or Respondents' decedent. The Hospital was alleged to be negligent in credentialing, retaining or supervising Dr. Pendrak, in violation of section 766.110, Florida Statutes.

Respondents served the Hospital with a Notice of Taking Videotape Deposition Duces Tecum of Gary Karsner, the Hospital's CEO. The Notice was mailed prior to the passage of Amendment 7, and sought production of "[a]ll files, papers, and computer records relating to the selection, retention, or termination of Robert B. Pendrak, M.D. at [the Hospital]." The Hospital moved for a protective order as to the credentialing file and related documents, invoking risk management, peer review and statutory privileges, and filed a privilege log pursuant to Fla. R. Civ. P. 1.280(b)(5).

Karsner's deposition was held the day after Amendment 7 passed. Karsner was asked questions regarding the investigation by Karsner or his staff into Dr. Pendrak's background. The Hospital's counsel instructed Karsner not to answer, because the information was confidential as having come from the Credentials Committee, Risk Management Committee, Peer Review Committee, Medical Review Committee, or Quality Assurance Committee. Consequently, Karsner testified he could not answer.

Respondents filed a motion to compel production of documents and answers to deposition questions, asserting Amendment 7 applied to the information sought from Karsner. Respondents subsequently filed two additional motions to compel deposition testimony and production of documents, and a request to determine the applicability of Amendment 7. These motions broadened the previous request to "any records made or received in the course of business by [the Hospital] relating to any adverse medical incident involving Dr. Pendrak."

Following a motion hearing, the trial court concluded: (1) section 381.028 restricted rights granted under the Florida Constitution and, consequently, was unconstitutional; (2) Amendment 7 is not unconstitutionally retrospective because there is no vested right in maintaining confidentiality of adverse medical incidents; and (3) Amendment 7 is self-executing and prospective in operation, but retrospective as to extant records. We agree with each conclusion, and discuss them in turn.

Section 381.028, Florida Statutes Restricts Constitutional Rights

State constitutions are limitations upon the power of state legislatures. See Peters v. Meeks, 163 So.2d 753, 755 (Fla.1964). Consequently, a statute enacted by the Legislature may not restrict a right granted under the Constitution. See Austin v. Christian, 310 So.2d 289, 293 (Fla.1975). To the extent a statute conflicts with express or clearly implied mandates of the Constitution, the statute must fall. See Holley v. Adams, 238 So.2d 401, 405 (Fla.1970); In re Advisory Opinion to the Atty. Gen., Limitation of Non-Economic Damages in Civil Actions, 520 So.2d 284, 287 (Fla.1988) (noting statutes "which are inconsistent with the Constitution, if it is amended, will simply have to give way"); Henderson v. State, 155 Fla. 487, 491, 20 So.2d 649, 651 (Fla.1945) (noting "when the provisions of a statute collide with provisions of the Constitution the statute must give way."); State ex rel. Curley v. McGeachy, 149 Fla. 633, 642, 6 So.2d 823, 827 (Fla.1942) (en banc) (noting provisions of Constitution will prevail over statutes where there is conflict).

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Section 381.028, Florida Statutes, purports to implement Amendment 7. However, a comparison of the plain language of the "implementing" statute and article X, section 25, reveals the statute drastically limits or eliminates discovery of records the amendment expressly states are discoverable, and limits the "patients" qualified to access those records. Four examples illustrate how section 381.028 restricts...