West Florida Reg'l Med. Ctr., Inc. v. See

Citation79 So.3d 1
Decision Date12 January 2012
Docket NumberNo. SC09–1997.,SC09–1997.
PartiesWEST FLORIDA REGIONAL MEDICAL CENTER, INC., etc., Petitioner, v. Lynda S. SEE, et al., Respondents.
CourtUnited States State Supreme Court of Florida

OPINION TEXT STARTS HERE

Held Unconstitutional

West's F.S.A. § 381.028(7)(b)(1).Recognized as Unconstitutional

West's F.S.A. § 381.028(3)(j), (5, 6), (7)(a).

Stephen J. Bronis, Walter J. Tache, Cristina Alonso, and Jessica Zagier Wallace of Carlton Fields, P.A., Miami, FL, and Christine Davis Graves of Carlton Fields, P.A., Tallahassee, FL, for Petitioner.

Philip M. Burlington of Burlington and Rockenbach, P.A., West Palm Beach, FL, and Thomas C. Staples of Staples, Ellis and Associates, P.A., Pensacola, FL, for Respondents.LEWIS, J.

West Florida Regional Medical Center, Inc. (West Florida Hospital) seeks review of the decision of the First District Court of Appeal in West Florida Regional Medical Center, Inc. v. See, 18 So.3d 676 (Fla. 1st DCA 2009), asserting that it expressly and directly conflicts with a decision of the Fourth District Court of Appeal in Tenet Healthsystem Hospitals, Inc. v. Taitel, 855 So.2d 1257 (Fla. 4th DCA 2003). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTUAL AND PROCEDURAL BACKGROUND

Facts

In August 2003, Lynda See complained of pain in her abdominal area during a consultation with her general physician. The general physician ordered an ultrasound which revealed a small amount of sludge in her gallbladder. Based on these ultrasound results, the general physician referred See to Dr. Mary Jane Benson, M.D., for further evaluation and treatment. Dr. Benson determined that See was in need of a laparoscopic cholecystectomy, i.e., a surgical removal of her gallbladder, after that examination and evaluation.

In late August 2003, Dr. Benson performed the surgery on See at West Florida Hospital. See's common bile duct, also known as the common hepatic duct, was severed during the surgical procedure. When Dr. Benson discovered this laceration, she immediately consulted with Dr. George C. Rees, M.D. Dr. Benson and Dr. Rees were of the opinion that the appropriate medical course of action under the circumstances was to immediately perform two procedures on See—an open laparotomy and a Roux–en–Y hepaticojejunostomy. Without See's knowledge or consent, Dr. Benson and Dr. Rees performed those two procedures on her. Because Dr. Benson and Dr. Rees allegedly performed the procedures in a negligent, incorrect, and improper manner, See suffered additional damage to internal organs, especially to her liver. Following the procedures, Dr. Benson allegedly also failed to perform regular periodic liver diagnostic tests on See to monitor her condition.

Due to the alleged surgical errors by Dr. Benson and Dr. Rees, along with the failure to regularly monitor See's condition following surgery, See's liver sustained continuing and progressive damage. The continuing deterioration of See's liver necessitated additional surgery, which was performed on April 4, 2005. At the time this action was filed, See needed a liver transplant due to the damage caused by Dr. Benson and Dr. Rees.

After conducting the statutory pre-suit procedures provided in chapter 766 of the Florida Statutes (2006), See filed a negligence action against Dr. Benson, Dr. Rees, and West Florida Hospital. See alleged that Dr. Benson and Dr. Rees were negligent in rendering medical care to her, which resulted in excessive liver damage. See's claims against West Florida Hospital were based on both vicarious liability for Dr. Benson's negligence, as well as liability for the direct negligence in granting medical staff privileges to Dr. Benson and Dr. Rees, which led to the medical care and procedures performed.

Discovery Proceedings

During the discovery process that followed the filing of this action, See requested that West Florida Hospital produce all documents, rules, and regulations with regard to its surgical credentialing for laparoscopic cholecystectomy, Roux–en–Y hepaticojejunostomy, and other bile duct injury repairs, as well as all documents and evidence pertaining to the training of Dr. Benson and Dr. Rees for those procedures. See also requested that West Florida Hospital provide its entire credentialing file for Dr. Benson and Dr. Rees. Finally, pursuant to article X, section 25, of the Florida Constitution (Amendment 7),1 See requested that West Florida Hospital disclose all incident reports that involved West Florida Hospital, Dr. Benson, and Dr. Rees with regard to laparoscopic cholecystectomy and Roux–en–Y hepaticojejunostomy.

West Florida Hospital objected to See's discovery request and moved for a protective order. West Florida Hospital objected on the basis that Amendment 7 was unconstitutional under the Supremacy Clause of the United States Constitution. West Florida Hospital also alleged that, notwithstanding the passage of Amendment 7, the information requested by See was neither discoverable nor admissible for any purpose in a civil action. West Florida Hospital further contended that See was not entitled to the records of adverse medical incidents that she requested because the implementing legislation for Amendment 7—i.e., section 381.028, Florida Statutes (2006)—stated that Amendment 7 does not repeal or otherwise alter any existing restrictions on, or privileges protecting against, the discoverability or admissibility of records relating to adverse medical incidents otherwise provided by law. According to West Florida Hospital, this limitation included the restrictions against the disclosure of peer review and credentialing materials embodied in sections 395.0191, 395.0193, 395.0197, 766.101, and 766.1016, Florida Statutes (2006).

See subsequently submitted to West Florida Hospital a subpoena duces tecum for deposition of West Florida Hospital's CEO, Dennis Taylor. In that subpoena, See requested that Taylor bring to the deposition a series of documents, including the completed applications of Dr. Benson and Dr. Rees for medical staff privileges at West Florida Hospital, any renewal applications, a blank application for medical staff privileges used by West Florida Hospital in its peer review process, and the medical staff bylaws of West Florida Hospital.

In accordance with its bylaws, West Florida Hospital issues a blank application for medical staff privileges to an applicant only after that applicant has provided documentation and information illustrating his or her eligibility for privileges. Only after that information is provided, and after West Florida Hospital verifies the eligibility of a potential applicant, will West Florida Hospital issue to the applicant a blank application for medical staff privileges—not before. An applicant's failure to provide the required documentation will result in ineligibility to apply for staff membership or clinical privileges.2

Additionally, the medical staff bylaws of West Florida Hospital provide that an applicant for clinical privileges carries the burden of producing adequate information for a proper evaluation of his or her qualifications for clinical privileges, and that the credentialing committee has no obligation to review an application for medical staff privileges until it is fully completed. In conformity with the bylaws, an application is complete only after the hospital receives and verifies all information required under the application. Accordingly, West Florida Hospital will not consider a physician's application for medical staff privileges—or the information provided therein—until after the application is completed and verified. Thereafter, West Florida Hospital submits the application to the particular department for which the applicant is seeking credentialing, and the department provides the credentialing committee with a copy of the application for its review.

Although West Florida Hospital disclosed a copy of its medical staff bylaws, it objected to the disclosure of the completed applications of Dr. Benson and Dr. Rees, as well as to the request that a blank application be produced. The hospital moved for a protective order with regard to those documents. West Florida Hospital contended that both the completed and blank applications were privileged because they related to peer review and fell within the statutory privileges provided in sections 395.0191, 395.0193, and 766.101, Florida Statutes.

In an amended motion for protective order, West Florida Hospital renewed its previous objections and further contended that the requested materials were not discoverable because the United States Congress preempted state law with regard to Amendment 7 by way of the Health Care Quality Improvement Act of 1986 (“HCQIA”). Specifically, West Florida Hospital alleged that Amendment 7 is unconstitutional because it conflicts with the accomplishment and execution of the full purpose and objective of the HCQIA, which is to foster effective peer review.

West Florida Hospital next objected to all discovery requests made pursuant to Amendment 7 on the basis that Amendment 7, as interpreted by this Court in Florida Hospital Waterman, Inc. v. Buster, 984 So.2d 478 (Fla.2008), violates the Contract Clause of the United States Constitution. West Florida Hospital also contended that Buster supports the conclusion that Amendment 7 is unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment because of the undue burden it places on litigants. Next, West Florida Hospital alleged that the discovery requests were overly broad under Amendment 7 in that the requests sought information that was privileged or confidential and beyond the scope of “adverse medical incidents” as that term is defined in Amendment 7.

West Florida Hospital also argued that the records See requested were attorney work-product and protected under section 395.0197(4), Florida Statutes (2006). More specifically, West Florida Hospital contended that in Buster, this Court did not invalidate section 381.028(7)(...

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