Your Right to Know: Medical Malpractice Litigation, Discovery, and Florida’s Amendment 7
On November 2, 2004, eighty percent of Florida’s voters voted to pass Amendment 7, known as the “Patients’ Right to Know” Amendment. Amendment 7, now a part of Florida’s Constitution under Article X, Section 25, provides that “any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident are subject to discovery.” “Adverse Medical Incident” is defined as:
“[M]edical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, incuding, but not limited to, those incidents that are required by state or federal law to be reported to any government agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee of representative of any such committees. See Article X, Section 25(c), Fla. Const.
Perhaps not surprisingly, requests for the release of medical incident reports pursuant to the requirements of Amendment have been met with resistance. Medical providers have engaged in lengthy and costly litigation over the scope and applicability of the amendment to no avail. See e.g., Florida Eye Clinic, P.A. v. Gmach, (5th DCA, May 29, 2009); and Florida Hospital Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008). Arguments used by the defendants in such cases have ranged from “protected attorney work product” arguments to “federal law preemption” arguments.
Recently even the constitutionality of Amendment 7 was challenged in Columbia Hospital Corporation of S. Broward v. Fain, (Fla. 4th DCA, August 19, 2009). In Fain, William Fain, while a patient at a hospital operated by Columbia, died as the result of a fall from his hospital bed. His estate sued Columbia for medical negligence. As part of its discovery request, the estate had requested incident reports for Fain’s fall and all adverse medical incident reports involving falls of patients under “fall precautions” within the past five years. Columbia objected to the request on a number of grounds based on Florida’s Amendment 7, including an argument that incident reports such as the ones requested were protected work product. Columbia appealed the trial court’s order overruling many of Columbia’s objections, and Columbia appealed.
Columbia’s first argument against providing the requested incident report was based on its assertion the information was protected work product under the Florida Rules of Civil Procedure and therefore not discoverable under Amendment 7. As stated above, such arguments have been used in other Florida cases. The Fain Court noted that, “[p]rior to the passage of Amendment 7, a hospital’s incident reports have generally been considered protected as a fact work product and discoverable only upon a showing of need and undue hardship.”
The Fain Court declined to decide on the work product issue on “lack of ripeness grounds”, but did state that “[a] distinction may need to be made between fact work product and opinion work product” to provide clarity on the records discoverable under Amendment 7. The Fain Court did opine that “[i]t is not clear that a provider or healthcare facility may, after the amendment, continue to refuse to provide an adverse medical incident report based on a fact work product.”
Columbia further argued that the “estate’s discovery requests are irrelevant, overbroad, and unduly burdensome.” The Fain Court noted that other decisions of Florida’s courts have held that the Amendment’s scope is very broad. For example, in Morton Plant Hospital Ass’n v. Shahbas ex rel. , 960 So. 2d 820, 825 (Fla. 2d DCA 2007) the Court held that “burdensome is not a relevant consideration under Amendment 7.” The Shabas Court further stated held that “Amendment 7 contains no requirement that information sought by a patient be relevant to any pending medical malpractice action or medical care decision.” Fain Court citing Shahbas at 825.
Also in 2008, the Florida Supreme Court found that Amendment 7 applied retroactively to materials prepared before its passage and that attempts by the Florida legislature to limit requests under Amendment 7 to facilities or providers where the party seeking the information was physically a “patient” receiving treatment were unconstitutional. Fain, citing Florida Hospital Waterman, Inc. v. Buster, 984 So. 2d 478, 493 (Fla. 2008).
As the Fain Court noted, “[t]he purpose of Amendment 7 was to lift the shroud of secrecy from records of adverse medical incidents and to make them widely available." In finding that the estate’s discovery request was not irrelevant, overbroad, and burdensome, the court went on to state:
A request for Amendment 7 materials is not an ordinary discovery request which can be subjected to overbreadth, irrelevance, or burdensome objections. Pursuant to the amendment, a “patient” has the absolute right to discover records relating to an adverse medical incident and that right is not conditioned on the discovery being relevant to a pending claim. A litigant in a medical malpractice case clearly qualifies as a “patient” under the amendment and is entitled to discover the information. It is illogical to conclude that the estate could discover information regarding adverse medical incidents out the context of this litigation but cannot discover the same information as part of its discovery in this case.
Columbia also argued that the estate’s request should be limited to those incidents which must be reported by law under Florida Statute 395.0197. The Fain Court again recognized the broadness of Amendment 7 by stating that “[t]he amendment provides that it is “not limited to” incidents that already must reported under law.” Fain Court citing Article X, section 25(c)(3).
Columbia also went on to challenge the constitutionality of Amendment 7 itself on Federal Preemption Grounds under the Health Care Quality Improvement Act of 1986 and Impairment of Contracts grounds. The Fain Court found both arguments unpersuasive.
Regarding the Federal Pre-emption argument, Columbia invoked the doctrine of implied conflict preemption to argue that the Federal Healthcare Improvement Act of 1986 (HCQIA) preempts Amendment 7 stands as obstacle to the accomplishment and execution of the full purposes and objectives of the HCQIA. The Fain Court noted that the HCQIA was passed to promote effective professional peer review to help stem the tide of increasing medical malpractice. The HCQIA was passed to promote effective peer review and also to prevent “the problem of incompetent doctors moving from one state to another.” The act also strives to encourage effective peer review by “bodies and those providing information in such proceedings from damages in a civil suit immunizing peer review bodies and those providing information in such proceedings from damages in a civil suit.”
See Fain citing 42 U.S.C. s. 11111.
The HCQIA also “provides for limited confidentiality of certain reports which must be submitted for inclusion in a national database.” Fain quoting 42 U.S.C. 11137 (b)(1).
Columbia attempted to use this particular provision of the HCQIA to argue that the type of information sought by the Plaintiff was confidential under the HCQIA. Or put another way, Amendment 7’s requirement for the release of adverse medical incident reports, was inconsistent with the HCQIA’s confidentiality requirements and thus violated the Supremacy Clause of the U.S. Constitution. Columbia further argued that Amendment 7 eliminates effective peer review by removing the discovery protections to those involved in the peer review.
Columbia’s circuitous argument can be summarized as follows. Without confidentiality protections afforded under the HCQIA, effective peer review cannot occur because those involved will be “afraid” to be involved in the peer review and will not offer concrete opinions and/or ideas on how to resolve a situation. Therefore the HCQIA’s confidentiality requirements, when read together with the HCQIA’s underlying intent to promote effective peer review, “trump” or pre-empt Amendment 7’s requirements for the release of adverse medical reports.
The Fain Court rightly discounted Columbia’s federal-preemption argument by pointing out that “[n]othing in the HCQIA, however, preempts a state from removing confidentiality or discovery protections that are not required by the federal act.” The Court also emphasized that both Florida Statute s. 766.101 and the HCQIA continue to provide immunity from liability for statements or opinions in peer review proceedings.
Finally, Columbia also argued that Amendment 7 violates the “Impairment of Contracts” Clause of the U.S. Constitution. This Clause prohibits “the states from passing any law that impairs “the Obligation of Contracts.” Columbia asserted that doctors who are in a contractual relationship with Columbia “have vested contractual rights to confidentiality which cannot be taken away by constitutional amendment.”
The test to establish a violation of “Contracts” provision of the U.S. constitution is “substantial impairment. The Fain Court held that “the impairment [of Columbia’s contracts with doctors] is not severe, and we conclude the at public’s interest in providing for broad discoverability of adverse medical incident reports easily meets the constitutional hurdle.”
What does the Fain decision mean for the medical malpractice litigant? That Amendment 7 should be construed very broadly by Florida courts in terms of: 1) who can discover records relating to adverse medical incidents; and 2) that a “lack of relevance” argument by the medical provider should have no consequence. The “verdict” is still out, however, over whether "work product" information is fully discoverable under Amendment 7. Indeed, the Fain Court stated, "a distinction may need to be drawn by the courts between fact work product and opinion-related work product." Until then, medical providers involved in litigation will most likely continue to argue that medical incident reports such as the ones at issue in Fain, constitute work product and should not be discoverable. At the very least, we contend that documentation generated in-house which provides information on an adverse incident (e.g., a fall) and is required to be completed as part of the medical provider’s routine business practices constitutes fact work product and is clearly the type of “discoverable” information covered by Amendment 7. Any other conclusion would defeat the purpose behind Amendment 7.
Clearly the estate in Fain was attempting to obtain the incident report information to determine Columbia’s “patient fall” history to establish a pattern of on-going “negligent” practices. Indeed one would like to believe all hospitals have procedures in place for: 1) identifying patients particularly susceptible to falls; 2) implementing procedures for preventing such falls and providing training to the staff; 3) timely documenting incidents involving a patient fall; 4) utilizing formal procedures for determining if the procedures in place were reasonably sufficient for preventing the particular patient’s fall, and if not, what procedures should be modified or added to prevent a recurrent. These suggested procedures are basic quality control procedures, which we have discussed in nursing home blogs. Hind site may be 20:20, but it's of little comfort to those who were injured as the result of medical negligence.
In medical negligence cases, the “product” is the patient, and patients should certainly warrant treatment under quality control and quality assurance practices. Obviously, despite the most reasonable and caring medical treatment and care, many patients will simply not get better. But for the cases in which you or a loved one believe that you or your loved was harmed by medical negligence, you may wish to seek legal advice to discuss your options.
