Amber Edwards v. Larry D. Thomas, M.D.
229 So. 3d 277
| Fla. | 2017Background
- Amber Edwards underwent gallbladder surgery at Bartow Regional Medical Center; surgical error (severed common bile duct) led to further treatment and a medical-negligence suit against Bartow and the surgeon.
- Edwards served a discovery request under Florida Constitution Art. X, § 25 ("Amendment 7") seeking internal and external peer-review records relating to adverse medical incidents involving Dr. Thomas.
- Bartow objected asserting records were not "made or received in the course of business," and that some documents were protected by attorney-client privilege and work-product doctrines; it produced some internal documents but withheld external peer-review reports prepared by M.D. Review.
- The trial court ordered production (after in camera review); Bartow petitioned the Second District, which quashed production in part, holding the external reports were created in anticipation of litigation and thus not "in the course of business," and therefore not covered by Amendment 7.
- The Florida Supreme Court accepted jurisdiction to resolve the constitutional interpretation of Amendment 7 and whether external peer-review reports (including those obtained at counsel's request) are discoverable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of Amendment 7 — whether it abolishes only prior statutory limits or all discovery limits on records relating to adverse medical incidents | Edwards: Amendment 7 grants patients a broad, absolute right to access "any records" relating to "any adverse medical incident," not limited to records previously protected by statute | Bartow/Second DCA: Amendment 7 only abrogated former statutory protections; it should be read narrowly to cover records created in the course of statutorily required reporting | Held: Amendment 7 is broad; it eliminates discovery restrictions on any records relating to any adverse medical incident, not just those formerly protected by statute |
| Whether external peer-review reports are "relating to any adverse medical incident" / prepared by a "similar committee" | Edwards: External peer-review reports relate to adverse medical incidents and the external reviewer qualifies as a "similar committee" under § 25(c)(3) | Bartow: External reports were not part of the hospital's routine or statutorily mandated peer-review process and thus are not the sort contemplated by Amendment 7 | Held: The term "similar committee" includes voluntary/external peer-review entities; external reports fall within Amendment 7's definition of adverse medical incident records |
| Whether reports were "made or received in the course of business" | Edwards: Hospitals routinely create or obtain adverse-incident records (including via outsourcing); such records are part of the ordinary course of business and thus covered | Bartow/Second DCA: Reports were prepared at counsel's request in anticipation of litigation, not in the ordinary course of business, so Amendment 7 does not reach them | Held: Reports of this kind (including externally prepared peer reviews) can be ‘‘made or received in the course of business’’ and are covered by Amendment 7; anticipatory preparation for litigation does not automatically remove them from the amendment’s reach |
| Applicability of work-product / attorney-client privileges to these reports | Edwards: To the extent reports contain fact work product, Amendment 7 abrogates that protection; no showing of opinion work product or privileged counsel communications here | Bartow: Reports are protected as work product or privileged attorney-client communications because they were requested by counsel and produced in anticipation of litigation | Held: Fact work product is within Amendment 7’s reach and discoverable; the Court did not decide opinion work product or attorney-client privilege here because the record did not show those protections applied to these reports |
Key Cases Cited
- Bartow HMA, LLC v. Edwards, 175 So.3d 820 (Fla. 2d DCA 2015) (district-court decision under review determining external expert reports prepared for litigation were not within Amendment 7)
- Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478 (Fla. 2008) (explains Amendment 7’s purpose to remove barriers to patient access and broad scope)
- Charles v. S. Baptist Hosp. of Fla., Inc., 209 So.3d 1199 (Fla. 2017) (hospital records required by Florida law are not protected patient-safety work product and are accessible under Amendment 7)
- Fla. Eye Clinic, P.A. v. Gmach, 14 So.3d 1044 (Fla. 5th DCA 2009) (ordering disclosure of incident reports under Amendment 7)
- Lakeland Reg’l Med. Ctr. v. Neely, 8 So.3d 1268 (Fla. 2d DCA 2009) (discusses distinction between routine incident reports and litigation-prepared documents)
- Acevedo v. Doctors Hosp., Inc., 68 So.3d 949 (Fla. 3d DCA 2011) (interpreting Amendment 7 as abrogating fact work-product protection for adverse incident reports)
- Progressive Am. Ins. Co. v. Lanier, 800 So.2d 689 (Fla. 1st DCA 2001) (work-product protects documents prepared in anticipation of litigation rather than ordinary business records)