West Florida Regional Medical Center v. See

• Decision Date: 25 September 2009
• Docket Number: No. 1D09-1055.,No. 1D09-1144.,1D09-1055.,1D09-1144.
• Citation: 18 So.3d 676
• Parties: WEST FLORIDA REGIONAL MEDICAL CENTER, INC. d/b/a West Florida Hospital, Petitioner, v. Lynda S. SEE and Rodney C. See, Respondents.
• Court: Florida District Court of Appeals

18 So.3d 676

WEST FLORIDA REGIONAL MEDICAL CENTER, INC. d/b/a West Florida Hospital, Petitioner, v. Lynda S. SEE and Rodney C. See, Respondents.

No. 1D09-1055.

No. 1D09-1144.

District Court of Appeal of Florida, First District.

September 25, 2009.

Stephen J. Bronis, Walter J. Tache, and Jessica Z. Wallace of Carlton Fields, P.A., Miami, for Petitioner.

Thomas C. Staples of Staples, Ellis & Associates, P.A., Pensacola, and Phillip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for Respondents.

ON MOTION FOR CLARIFICATION, REHEARING AND/OR REHEARING EN BANC, AND FOR CERTIFICATION OF QUESTIONS TO THE FLORIDA SUPREME COURT

LEWIS, J.

We deny Petitioner's Motion for Clarification, Rehearing and/or Rehearing En Banc, and for Certification of Questions to the Florida Supreme Court. On our own motion, we withdraw our previous opinion and substitute the following for it.

This consolidated action arises out of a medical malpractice suit between West Florida Regional Medical Center (Petitioner), d/b/a West Florida Hospital, and Lynda and Rodney See (Respondents). Petitioner seeks certiorari review of two discovery orders, arguing that the trial court departed from the essential requirements of the law in eight respects: (1) in denying its work-product objection to the production of records of adverse medical incidents ordered to be produced pursuant to Article X, section 25 of the Florida Constitution; (2) in ordering Petitioner to produce records beyond the scope of Respondents' requests; (3) in denying Petitioner the right, under section 381.028(7)(b)1, Florida Statutes (2006), to use the process identified in section 395.0197, Florida Statutes (2006), to decide which documents are considered records of adverse medical incidents; (4) in denying Petitioner the right to require prepayment of the costs of production, as authorized by section 381.028(7)(c)1; (5) in rejecting Petitioner's argument that Amendment 7 is preempted by the federal Health Care Quality Improvement Act of 1986; (6) in rejecting Petitioner's argument that Amendment 7 violates the Contract Clause of the United States Constitution, as applied in this case; (7) in ordering Petitioner to produce specific evidence of the training of two doctors to perform a certain surgical procedure; and (8) in ordering Petitioner to produce a blank copy of its application for medical staff privileges. We grant, in part, the petition seeking a writ of certiorari to quash the ruling requiring the production of evidence of the doctors' training. In all other respects, the petitions are denied. We write to explain our decision.

Facts

According to Respondents' complaint, Dr. Mary Jane Benson performed a laparoscopic cholecystectomy on Mrs. See at West Florida Hospital on or about August 19, 2003. Respondents allege that during the course of the procedure, Mrs. See's common bile duct was severed and that Dr. Benson then consulted with Dr. Rees to determine an appropriate course of action. Respondents allege that Drs. Benson and Rees then performed an open laparotomy and a Roux-en-y hepaticojejunostomy on Mrs. See. They further allege that Drs. Benson and Rees performed these procedures improperly, causing damage to Mrs. See's liver, and that the damage to Mrs. See's liver was exacerbated by Dr. Benson's failure to monitor Mrs. See's condition regularly after the surgeries. Respondents' claims against Petitioner include vicarious liability for Dr. Benson's negligence and direct liability for the negligent grant of medical staff privileges to Drs. Benson and Rees.

Respondents requested, pursuant to Amendment 7, that Petitioner produce "any and all adverse incident reports on [itself] (West Florida Hospital), Mary Jane Benson. M.D. and/or George C. Rees, M.D. ... pertaining to laparoscopic cholecystectomy and Roux-en-y hepaticojejunostomy." Respondents also requested the entire credentialing files for Drs. Benson and Rees and, in particular, evidence regarding the training of both doctors to perform a Roux-en-y hepaticojejunostomy. In addition, Respondents sought a blank application for medical staff privileges.

Petitioner objected to each of these discovery requests and moved for protective orders. Petitioner argued that all of the above requests should be denied because the requested documents were protected from discovery by statute. Petitioner acknowledged that Amendment 7 abrogated the relevant statutes to some extent, but argued that Amendment 7 violates the United States Constitution. Petitioner also raised a work-product objection, arguing that Amendment 7 does not affect the work-product privilege. Petitioner did not file a privilege log. Petitioner acknowledged the lack of a privilege log, opined that it was not yet required to file one due to the burdensomeness¹ of Respondents' requests, and asked the trial court to waive any requirement to file a privilege log if it determined that such a requirement applied. Additionally, Petitioner argued that, under sections 381.028(7)(b)1 and 395.0197, Florida Statutes (2006), it was not required to produce any records other than those of "incidents in Code 15 reports and the annual reports" that are required under subsections (5) and (7) of section 395.1097. Finally, Petitioner claimed that if the trial court ordered it to provide any of the requested records, Respondents were required to pay the costs of production in advance, pursuant to section 381.028(7)(c)1.

These discovery matters proceeded to a hearing. In discussing Respondents' requests for records of adverse medical incidents involving the hospital and Drs. Benson and Rees pertaining to laparoscopic cholecystectomy and Roux-en-y hepaticojejunostomy, Respondents' attorney stated, "I'm not interested necessarily in adverse incident reports of everybody in the hospital now that I see what the expense is going to be." Shortly thereafter, he clarified, "I would like any type of peer review that was done on this particular incident. I'm not necessarily interested in other incidents. I'll limit it to this particular incident, the one on Mrs. See."

On February 6, 2009, the trial court issued its "Order Granting, in Part, and Denying, in Part, West Florida Regional Medical Center, Inc.'s Amended Motion for Protective Order." The trial court rejected Petitioner's federal constitutional arguments and denied the motion for protective order as to "documents relating to `adverse medical incidents' as defined in Article X, Section 25(3)(c), Florida Constitution, of Mary Jane Benson, M.D. and George C. Rees, M.D. for two (2) years preceding the date of the first surgery performed on Mrs. See by the doctors in this case." The order is silent as to Petitioner's work-product objection and its arguments regarding section 381.028(7)(b)1 &(c)1.

On February 9, 2009, the trial court issued its "Order on West Florida Regional Medical Center, Inc.'s Amended Motion to Quash and for Protective Order." In this order, the trial court denied Petitioner's motion for protective order as to the evidence of the doctors' training to perform the Roux-en-y hepaticojejunostomy procedure and as to the blank application for medical staff privileges.

Petitioner filed separate petitions for writ of certiorari with this Court challenging each order, and upon Petitioner's motions, we consolidated the actions.

Jurisdiction

To establish entitlement to certiorari relief, the petitioner must demonstrate that the order under review departs from the essential requirements of law and will cause irreparable harm, i.e. harm that cannot be remedied on appeal. See Chavez v. J & L Drywall & Travelers Ins. Co., 858 So.2d 1266 (Fla. 1st DCA 2003). The irreparable-harm inquiry is an issue of jurisdiction, and thus, must be undertaken first. Olges v. Dougherty, 856 So.2d 6, 10 (Fla. 1st DCA 2003). Often, orders granting discovery are reviewed by certiorari under the rationale that once discovery is wrongfully granted, the aggrieved party is "beyond relief." See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla. 1987). The Florida Supreme Court has cautioned, however, that not every erroneous grant of discovery is reviewable by certiorari. Id. at 1100. Where the injury caused by an erroneous discovery order is the unnecessary expenditure of time or money or even a violation of a party's "valid privacy interest in avoiding unnecessary disclosure of matters of a personal nature," the injury is insufficient to invoke the district courts' certiorari jurisdiction. Id. In contrast, where the complaining party's interest in avoiding discovery involves trade secrets, work product, or information about a confidential informant, an order compelling discovery is reviewable by certiorari. See id. Orders that require the production of "`cat out of the bag' material that could be used to injure another person or party outside the context of the litigation" are reviewable by certiorari. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995).

Applying these standards, we conclude that two of the eight challenged rulings are not reviewable by certiorari. The trial court's order to Petitioner to produce documents beyond the scope of Respondents' request will not cause irreparable harm of the type that may be remedied by a writ of certiorari. The only harm this order will cause is unnecessary expense. To the extent the ruling may require Petitioner to produce privileged or protected documents, it is adequately addressed by our review of the rulings on the constitutionality of Amendment 7. Similarly, the trial court's denial of Petitioner's request for an order requiring the prepayment of costs of production will not cause the type of harm that may be remedied by certiorari; again, the only harm that may result from the denial of this request is monetary. The remaining rulings all concern documents that would be protected, either by the work-product privilege or by statutory confidentiality...