Moving Forward to Protect Privileged Information
The Amendment: Discoverable Adverse Incident Reports
Florida residents voted to pass Amendment 7 on November 2, 2004, which became Article X, Section 25 of the Florida Constitution. The Amendment provides patients 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.” The legislation then passed Florida Statute Section 381.028 in an effort to implement the Amendment. The statute grants patients access to “records of adverse medical incidents, which records were made or received in the course of business by a health care facility or provider.”1 However, the access is subject to the restrictions set forth in other sections of the code, such as Florida Statute Section 766.101, which protects the investigations, proceedings, and records of medical peer view committees2 from “discovery or introduction into evidence in any civil or administrative action.”3 Section 381.028 also defines “records” as only the final reports of adverse medical incidents.4
Diverse Judicial Interpretation
In 2008, the Florida Supreme Court in the case of Florida Hospital Waterman, Inc. v. Buster, held that the Amendment is self-executing and retroactive, applying to adverse medical incidents occurring prior to the date of passage.5 The Court also held unconstitutional the provisions of Florida Statute Section 381.0286 pertaining to the discoverability of only final reports of adverse medical incidents. This includes documents created during the peer review process. To justify the effect of the Court’s decision on the seemingly protected peer review process, the Court reasoned that realistically the statutes affording confidentiality for peer review committees merely limit the discovery of committee proceedings in judicial or administrative actions. The statutes do not prevent the use of the information at the medical institution involved or amongst the medical community.7 As such, the statutes do not create a privilege or vested right.8
The Court also held unconstitutional the provision allowing only patients at a particular medical institution to access that institution’s records.9 Essentially, the Court upheld the statute as a whole, and severed the unconstitutional provisions.10
Since the Waterman decision and its elimination of the shell protecting the peer review process, District Courts have been all over the spectrum with regard to the reach of Amendment 7. In a defamation case between two physicians, which included a claim for tortious interference with a business relationship, one of the physicians claimed the other misappropriated a patient.11 The patient filed an affidavit requesting peer review materials related to the patient’s adverse medical incident.12 The Fourth District Court of Appeal held the request appropriate, reasoning that the Amendment “does not require the information a patient seeks to be relevant to a pending medical malpractice action or to a medical care decision.”13 The court also held the Amendment also does not restrict the patients’ subsequent revelation of the information.14 Clearly, this is a devastating and overly broad interpretation of this already too liberal Amendment.
Conversely, in a medical malpractice action, the Third District Court of Appeal held the blanket disclosure of the complete credentialing files of the defendant physicians violated the Florida Statutes.15
Medical institutions can take some solace by virtue of Amendment’s application only to records. Protective guards remain against liability, compelling testimony, identity of peer reviewers, use of information in litigation, and attorney-client and work product information.16 As such, these institutions can transform the peer review process aimed at potential claims into attorney-client privileged communications.17 The institutions can and should include counsel during root cause investigations and meetings. However, the Supreme Court may re-establish the limits of the attorney-client privilege in light of this certain future use and potential misuse of the privilege.18
Another avenue for challenging the Amendment arises from a claim of federal preemption. Though the federal government promotes the free flow of medical information through Hospital Compare19 and other tools, the Patient Safety and Quality Improvement Act of 2005 provides incentive to medical institutions by offering a privilege that protects patient safety work product from subpoena or discovery.20 This law could form the basis for a preemptive challenge to Amendment 7. One case based on this theory involved individual patients challenging Amendment 7 in federal court who argued federal statutes requiring the confidentiality of certain records preempt Amendment 7, which violates the United States Constitution.21 The issue did not reach a conclusion, however, as the plaintiffs opted to dismiss the suit.22 The claim lingers and will likely regain momentum in the near future.
In addition to the aforementioned options and recommendations, medical institutions may also consider the following practices in the wake of Amendment 7:
Replacing the peer review rating system with a system of concise narratives that are less apt to be misinterpreted by a layperson;
Tracking the identity of a peer reviewer by a method other than one requiring signatures on each peer review document;
Substituting oral discussions for written letters and other documents;
Deleting overly broad and negative language from peer review forms;
Beginning each peer review committee meetings with a comment that discussions are confidential as between the participants in the committee and/or inclusion of the institution’s counsel within the meeting;
Reviewing draft copies of the minutes from peer review committee meetings and ensure the final does not contain a reviewer’s signature;
Auditing peer review criteria, bylaws, rules/regulations, and quality improvement plans and procedures;
Allowing a flexible peer review process for cases involving anticipated litigation;
Including only facts and observations in incident reports and omit all speculative commentary;
Including narrative opinions in documents using statistics to show trends in incidents;
Changing the purpose of the peer review committee to a general statement regarding improvement of general quality; and,
Considering having patients sign a confidentiality agreement upon presentation to the institution.23
Amendment 7 still spurs a great deal of controversy. As the Amendment “heralds a change in the public policy of this state to lift the shroud of privilege and confidentiality in order to foster disclosure of information,”24 medical institutions will endeavor to be able to self police and improve the profession without the fear of completely transparent exposure…without such an ability, the medical profession will merely suffer and weaken as the threat of litigation becomes reality.
1 Fla. Stat. § 381.028 (2008).
2 A committee “formed to evaluate and improve the quality of health care rendered by providers of health service or to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area.” § 766.101.
3 Fla. Stat. § 766.101.
4 Fla. Stat. § 381.028.
5 Florida Hospital Waterman, Inc. v. Buster 984 So.2d 478 (Fla. 2008).
6 The following aspects of Florida Statute Section 381.028 conflict with Amendment 7: “(1) the statute only allows for final reports to be discoverable, while the amendment provides that “any records” relating to adverse medical incidents are subject to the amendment; (2) the statute only provides for disclosure of final reports relating to the same or a substantially similar condition, treatment, or diagnosis with that of the patient requesting access; (3) the statute limits production to only those records generated after November 2, 2004; and (4) the statute states that it will have no effect on existing privilege statutes.” Waterman, 984 So.2d at 492.
7 Id. at 490-491.
11 Amisub North Ridge Hosp., Inc. v. Sonaglia, 995 So.2d 999 (Fla. 4th DCA 2008).
15 Baptist Hospital of Miami, Inc. v. Garcia, 994 So. 2d 390 (Fla. 3d DCA 2008). The court reasoned that the entire file likely contained documents not discoverable pursuant to Sections 395.0191(8) and 766.101(5) of the Florida Statutes. Id. at 393.
16 See Peer Review in Florida Since Constitutional Amendment 7 Passed, http://www. benedictriskmanagement.com/docs/Peer_review_06062006.pdf.
17 See Riding the Red Rocket: Amendment 7 and the End to Discovery Immunity of Adverse Medical Incidents in the State of Florida, http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/ 8c9f13012b96736985256aa900624829/258fdd31c33e3cda85257567006b3148?OpenDocument.
18 See Riding the Red Rocket: Amendment 7 and the End to Discovery Immunity of Adverse Medical Incidents in the State of Florida, http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/ 8c9f13012b96736985256aa900624829/258fdd31c33e3cda85257567006b3148?OpenDocument.
19 Hospital Compare is a tool that provides information on how well hospitals care for patients with certain medical conditions or surgical procedures, and results from a survey of patients about the quality of care they received during a recent hospital stay. See http://www.hospitalcompare.hhs.gov/Hospital/Search/ Welcome.asp?version=default&browser=IE%7C7%7CWinXP&language=English&defaultstatus=0&pagelist=Home.
20 42 U.S.C. § 299b-22.
21 See Riding the Red Rocket: Amendment 7 and the End to Discovery Immunity of Adverse Medical Incidents in the State of Florida, http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/ 8c9f13012b96736985256aa900624829/258fdd31c33e3cda85257567006b3148?OpenDocument.
22 See Riding the Red Rocket: Amendment 7 and the End to Discovery Immunity of Adverse Medical Incidents in the State of Florida, http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/ 8c9f13012b96736985256aa900624829/258fdd31c33e3cda85257567006b3148?OpenDocument.
23 See Peer Review in Florida Since Constitutional Amendment 7 Passed, http://www. benedictriskmanagement.com/docs/Peer_review_06062006.pdf.
24 Waterman, 984 So.2d at 494.
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