Riding the red rocket: Amendment 7 and the end to discovery immunity of adverse medical incidents in the state of Florida.

• Author: Harris, J.B.

On November 2, 2004, voters in Florida overwhelmingly approved Amendment 7. (1) Known as the "Patients' Right-to-Know About Adverse Medical Incidents," Amendment 7 represents one of the most sweeping changes in law and public policy ever adopted in this state. (2) In one fell swoop the amendment has successfully breached the walls of privilege and immunity surrounding secret peer review, credentialing, investigations, quality assurance, and risk assessments of both health care providers' and health care facilities' adverse medical incidents by paving the way for discovery of testimonial and documentary evidence relating to these activities. (3) Adoption of the amendment has even lifted the spirits of medical malpractice lawyers in Florida, and the injured patients they represent, (4) by enshrining in the Florida Constitution a virtual patient's Bill of Rights, while "lift[ing] the shroud of privilege and confidentiality" that has swaddled the health care industry for years. (5)

Heralding this change in policy, proclaimed the Fifth District Court of Appeal in Florida Hospital Waterman, Inc. v. Buster, 932 So. 2d 344, 356 (Fla. 5th DCA 2006), the amendment

foster[s] disclosure of information that will allow patients to better determine from whom they should seek health care, evaluate the quality and fitness of health care providers currently rendering service to them, and allow them access to information gathered through the self-policing processes during the discovery period of litigation filed by injured patients or the estates of deceased patients against their health care providers.

Prior to its approval, public policy in Florida, codified across an array of statutes, restricted a patient's right to know about a health care provider's or facility's adverse medical incidents and crowned the medical profession with an almost unlimited degree of authority, not only to regulate itself, but to conduct clandestine deliberations involving peer review, (6) credentialing, investigations, quality assurance, and risk assessments, as well. (7) This policy was based on a conventional belief that the medical profession could not deliver first-class health care without a high level of self-oversight, coupled with near bulletproof immunity from discovery of behind-the-scenes activities related to these pursuits.

Viewed from a historical perspective, Amendment 7 arose from a decades-long battle between doctors, insurance companies, and tort reformers on the one hand, and trial lawyers, patients' rights advocates, and civil justice proponents on the other, (8) over tort reform legislation (9) and efforts by the medical-insurance complex to curtail, if not eliminate, medical malpractice claims entirely. (10) Stoked, in part, by a well-coordinated campaign carried out by Floridians for Patient Protection, (11) its passage came to symbolize the public's long-simmering frustration over a perceived "protect our own" mentality perpetuated by the medical profession's efforts to shield from public scrutiny even the most dangerous doctors and hospitals. In the public's view, allowing the medical profession to continue to monitor itself, while hiding behind a veil of secrecy, had over time become like the proverbial fox guarding the hen house. Clearly, by 2004 the moment for change had come. (12)

In light of this tectonic shift in policy, whether the new rules articulated by Amendment 7 are more beneficial to society than the old remains to be seen. (13) One thing, however, is certain: from the point of ignition until now, Amendment 7 has taken off like a rocket, leaving in its trail a plume of litigation and court rulings that have had a dramatic impact on the way medical malpractice attorneys engage in discovery, and the way doctors, hospitals, and other health care providers conduct peer review, credentialing, investigations, quality assurance, and risk assessments. (14) While these battles will no doubt continue well into the future, as the smoke has started to clear, the contours of Amendment 7 have begun to emerge. This article will examine these lines and the significant case law that has made them distinct.

The Battle Lines are Drawn

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Eloquent in its simplicity, the purpose of Amendment 7 is "to create a constitutional right for a patient or potential patient to know and have access to records of a health care facility's or provider's adverse medical incidents, including medical malpractice and other acts which have caused or have the potential to cause injury or death." (15) More pragmatic than ideological, implicit in this purpose is a clear shift toward consumer protection and away from industry protection. Left unanswered following its adoption were three critical questions: 1) whether the amendment was self-executing, or required enabling legislation; 2) whether it preempted well established statutory immunities, or was it merely supplementary; and 3) whether it applied retroactively or prospectively. (16) Above all, these three questions would come to dominate the legal landscape in the early rounds of litigation involving the purpose and application of

Amendment 7. (17) Not surprisingly, given Amendment 7's orientation, these questions, along with attendant constitutional challenges, arose in rather ordinary ways. While Buster, cited above, and Notami Hospital of Florida, Inc. v. Bowen, 927 So. 2d 139 (Fla. 1st DCA 2006), were the first district court rulings to make it to the Florida Supreme Court on certified questions and conflict, (18) both emerged from common discovery disputes that surfaced in their underlying cases.

In March 2004, eight months prior to adoption of Amendment 7, Theresa Buster filed a medical malpractice action against Waterman Hospital, a doctor and a medical practice, on behalf of Larry Buster's estate. (19) On November 19, 2004, 17 days after the amendment was approved, Buster sought production of documents from the hospital relating to the investigation of the decedent's death and "any medical incidents of negligence, neglect, or default of any health care provider" that occurred prior to the effective date of the amendment. (20) The hospital objected and moved for a protective order. Following a hearing on Waterman's objections, the trial court ordered the hospital to produce all of the documents requested by Buster. In response, the hospital filed a petition for writ of certiorari with the Fifth District Court of Appeal. (21)

Buster I: Small Words Have a Big Impact

In March 2006, the Fifth District Court of Appeal handed down its landmark decision in Florida Hospital Waterman, Inc. v. Buster, 932 So. 2d 344 (Fla. 5th DCA 2006). In doing so, the Buster court held Amendment 7 1) "preempt[ed] statutory privileges afforded health care providers' self-policing procedures to the extent that information obtained in accordance with those procedures is discoverable during the course of litigation[;]" (22) 2) did not apply retroactively; and 3) was self-executing. Foreseeing conflict with other districts, the Buster court certified these holdings in the form of questions to the Florida Supreme Court for its review.

Reading the amendment in pari materia, while applying a far more liberal interpretation of its provisions than those of ordinary statutes, (23) the Buster court found that under subsection (a) of the amendment, the phrase "'patients' may obtain 'any records' relating to an 'adverse medical incident[,]'" was to be construed "in very broad terms to include any individual who has received or is currently receiving medical care or treatment." (24) Similarly, "'adverse medical incident'" means "'medical 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....'" (25)

Equally expansive was the Buster court's reading of the terms "medical negligence" and "intentional misconduct," and their reference to "acts that caused or could have caused death or injury and to patients who have previously received medical care." (26) Read together, these stipulations "clearly revealed" to the court "that such information may be obtained during the course of litigation by the patient through the discovery process," (27) or under subsection (c)(4) by merely sending "an informal request, such as a letter, or by a formal request, which certainly includes a formal discovery request made during the course of litigation ... [and] allows the request to be made by the patients or their representatives, which would include lawyers." (28)

Reasoning that "[i]t would make little sense to allow a patient access to the information prior to the institution of legal proceedings against a health care provider, but not during the course of litigation," (29) the Buster court concluded that law and "common sense" supported its holding that "Amendment 7 preempts the statutory privileges afforded health care providers regarding their self-policing procedures to the extent that such information is obtainable through a formal discovery request made by a patient or a patient's legal representative during the course of litigation." (30) This ruling, the first of its kind, was nothing short of groundbreaking.

Left unanswered, however, was whether a patient or prospective patient may obtain the same information outside the course of litigation, as both the amendment's stated purpose seems to imply--for instance when an individual merely seeks to obtain adverse medical information about a health care provider prior to treatment--and the Buster court seemed to confirm when it wrote, "Amendment 7 ... will allow patients to better determine from whom they should seek health care...." (31)

Nonetheless, the Buster court did not stop with its unprecedented ruling on the amendment's preemption of statutory privileges. Calling into question the validity of the enabling statute...