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

Fla. 2d DCA | 2009-05-08
No. 2D08-4102
CASANUEVA and SILBERMAN, JJ., Concur.
8 So. 3d 1268 Florida District Court of Appeal, Second District (2009) Positive Treatment
Cited by 14 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Lakeland Regional Medical Center sought a writ of certiorari to prevent disclosure of adverse medical incident reports, claiming work product doctrine protection. The Florida appellate court denied the petition, holding that Amendment 7 (Florida's Patients' Right to Know About Adverse Medical Incidents) preempts the common law work product doctrine and requires disclosure of such reports.


Holding

Amendment 7 preempts the common law work product doctrine as applied to existing reports of adverse medical incidents. Work product materials are not exempted under Amendment 7's language, and the work product doctrine—being a creation of common law rather than establishing a vested substantive right—does not override the constitutional right of access.


Headnotes

[1] Amendment 7 of the Florida Constitution grants patients a right to access records relating to adverse medical incidents, overriding existing statutory protections.

[2] The Florida Supreme Court's decision in Florida Hospital Waterman, Inc. …

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Key Quotes

“Amendment 7 'removefs] any barrier to a patient's discovery of adverse medical incident information, including the peer review protections provided by the statute.'”

Establishes the broad scope of Amendment 7's reach in removing discovery barriers, as determined in Buster.

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Facts & Procedural History

The Neelys filed a medical malpractice action against Dr. Gracia Damian and her clinic for a delivery matter. LRMC objected to a subpoena for adverse …

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Opinion of the Court
ALTENBERND, Judge.

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 pro*1269tected 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, Roñica 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 *1270are 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 “removefs] 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 ret-roactivity 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 provider’s history of adverse medical incidents and to provide a clear path to access those records.” Id. at 489. We find no basis to except work product materials from the reach of Amendment 7 as interpreted in Buster.

Second, the work product doctrine is a creation of the common law, first identified by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), and adopted by the Florida Supreme Court in Atlantic Coast Line R.R. Co. v. Allen, 40 So.2d 115 (Fla.1949). As a product of case law, the doctrine grants health care providers no more of a vested, substantive right than the statutory privileges at issue in Buster. Thus, the trial court’s order permitting discovery of adverse medical incident reports that LRMC contends are protected work product is consistent with Amendment 7 as interpreted by the Florida Supreme Court in Buster.

LRMC observes that some of these reports, in all probability, contain statements, opinions, and other information provided by sources who reasonably believed that their identities would not be readily available in litigation except to the lawyers representing LRMC. Admittedly, records prepared in anticipation of litigation are prepared by clients, at least in part, to assist lawyers. LRMC essentially argues that the fact these records are prepared in anticipation of litigation by health care professionals does not necessarily transform them into the type of records the electorate intended to make available for patients. At least as it relates to these incident reports, we conclude these arguments do not override the reasoning in Buster. 2

*1271Accordingly, we deny LRMC’s petition for writ of certiorari. Because this issue affects litigation throughout the state, as well as rules of procedure promulgated by the supreme court, we certify the following question of great public importance:

DOES THE RIGHT OF ACCESS GRANTED PURSUANT TO AMENDMENT 7, CODIFIED AS ARTICLE X, SECTION 25, OF THE FLORIDA CONSTITUTION, PREEMPT THE COMMON LAW WORK PRODUCT DOCTRINE AS IT APPLIES TO EXISTING REPORTS OF ADVERSE MEDICAL INCIDENTS?

CASANUEVA and SILBERMAN, JJ., Concur.


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Citator

Cited By

  • Edwards v. Larry D. Thomas, M.D., 229 So. 3d 277 (Fla. 2017)
    …amendment affects, or even abrogates, statutes that previously exempted records of investigations, proceedings, and records of peer review panels from discovery in civil or administrative actions.”); Lakeland Reg’l Med. Ctr. v. Neely ex rel. Neely, 8 So. 3d 1268, 1270 (Fla. 2d DCA 2009) (“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.’” (alteration…
    1 / 2
  • …Waterman, Inc. v. Buster, 984 So. 2d 478, 489 (Fla.2008) (upholding the constitutionality of Amendment 7 and noting that it creates “a broader right to know about adverse medical incidents than currently exists”); Lakeland Reg’l Med. Ctr. v. Neely, 8 So. 3d 1268, 1270 (Fla. 2d DCA 2009) (finding no basis to except work product materials from the reach of Amendment 7 as interpreted by Buster ).3 However, there is nothing in Amendment 7 to suggest the voters intended to create a chilling effect within legal p…
  • Bartow HMA, LLC v. Kirkland, 126 So. 3d 1247 (Fla. 2d DCA 2013)
    …1252] circuit court’s order departs from the essential requirements of the law and causes material injury to it throughout the remainder of the proceedings below with no adequate remedy on appeal. See Lakeland Reg’l Med. Ctr. v. Neely ex rel. Neely, 8 So. 3d 1268, 1269 (Fla. 2d DCA 2009); Morton Plant Hosp. Ass’n, Inc. v. Shahbas ex rel. Shahbas, 960 So. 2d 820, 823 (Fla. 2d DCA 2007). In its petition, Bartow Regional argues that the circuit court departed from the essential requirements of the law by requi…

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