Floridians won another important victory in a series of cases that have arisen since voters overwhelmingly passed Article X, Section 25 of the Florida Constitution, commonly known as Amendment 7. The court held last week in Edwards v. Thomas that Amendment 7 is intended to eliminate all discovery restrictions on any records relating to any adverse medical incident. This case lays to rest many of the arguments about the discoverability of reports of adverse medical incidents. It also makes clear that the people have a constitutional right to see the records generated in response to these adverse medical incidents.
For decades, hospitals and doctors used Florida law to prevent patients from seeing the results of internal investigations into adverse medical incidents, i.e., medical negligence, intentional misconduct or any other act, neglect or default of a health care facility or provider that caused or could have caused an injury to or the death of a patient. Commonly known as the peer-review privilege, this legal barrier to the disclosure of the reports kept Florida’s citizens from being able to fully evaluate their health care providers before selecting them and also prohibited patients, once they became plaintiffs in medical malpractice cases, from finding out what went wrong in their own cases.
In 2003, the people voted overwhelmingly in favor of Amendment 7. It was intended to pull back the curtain of the peer-review privilege to reveal what doctors and hospitals were saying privately about these incidents. There have been no less than 20 appellate court decisions since that time, all of which were efforts by hospitals and doctors to narrow the scope of Amendment 7 or make it more difficult to access the records. The Florida Appellate courts have almost uniformly rejected those arguments, ruling instead in favor of a broad understanding of the scope of Amendment 7 and an easy route of access to the records.
The hospital in the Edwards case hired counsel shortly after the incident occurred and attorney recommended an outside review of the incident. The hospital sought to block the patient from having access to those records and argued that they were beyond the scope of Amendment 7 and were protected by the attorney work-product privilege because it was their attorney who asked for the review. The Florida Supreme Court rejected the hospital’s arguments and stated that the scope of Amendment 7 was intended to encompass the outside review.
This may be one of if not the last case for hospitals and doctors seeking to block medical malpractice plaintiffs from discovering the reviews of adverse medical incidents. This case paves the way for the citizens of this state to make informed decisions about which hospitals and doctors they select by allowing them first to make inquiries about adverse medical incidents in which either have been previously involved. It also opens the door to the ready access to reports of adverse medical incidents by patients who have been injured as a result of medical negligence. Hospitals and doctors will have an ever-increasingly difficult time hiding acts of negligence and protecting those who committed them.
This case is a big step in the right direction for three reasons. The people have spoken. They need and want access to information that helps them select their health care providers. The people simply were not as concerned about the “chilling effect” that making these reviews public would have on the delivery of health care. In fact, they voted not for a piece of legislation or a municipal ordinance, but for a constitutional amendment enshrining that right in the state’s most sacred legal document. The second reason is that when hospitals are required to review adverse medical incidents and disclose the results of those reviews, they won’t tolerate for long physicians involved in horrific or numerous adverse medical incidents. Those hospital staff privileges will be revoked and the quality of care, in general, will be improved. Finally, it is inherently unfair to prevent a medical malpractice plaintiff injured by the negligence of a hospital and/or a physician not to have access of the results of the review of their very own adverse medical incident. This case is good news for the citizens of the State of Florida.
James S. Haliczer is managing partner at Haliczer Pettis & Schwamm in Fort Lauderdale. He can be reached at JHaliczer@hpslegal.com