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Last month, the Florida Supreme Court issued an opinion relating to the constitutionality of legislation that implemented and clarified the “Patients’ Right to Know about Adverse Medical Incidents,” a constitutional amendment approved by the voters in the November 2004 general election. The “Patients’ Right to Know” amendment, commonly known as “Amendment 7,” provides that “patients” have a right of access to “records of adverse medical incidents.” In the spring of 2005, the Florida legislature enacted section 381.028 of the Florida Statutes to implement and clarify the application of the Amendment. Constitutional challenges to the new statute immediately followed.
On March 6, 2008, in the consolidated cases of Florida Hospital Waterman v. Buster and Notami Hospital of Florida v. Bowen, the Florida Supreme Court ruled on the constitutionality of the statute, finding that many of its provisions violate the Florida Constitution. Moreover, the Court found that Amendment 7 applies retroactively to records created before the Amendment became part of the Constitution.
Prior to the election, proponents of Amendment 7 publicized it as providing patients with the ability to obtain information to make better-informed choices among health care providers. The legislature enacted section 381.028 of the Florida Statutes to effectuate the stated purpose of Amendment 7, to maintain existing protections that were not inconsistent with that purpose, and to prevent requestors from inundating providers with requests of unlimited scope. To that end, the legislation provides: that only final reports of adverse medical incidents are subject to disclosure; that such documents are not subject to discovery or admissibility in civil or administrative actions; that the person requesting documents must show that he or she has been a patient of, or has an impending patient relationship with, the provider from whom records are sought; that the patients have the right to access only those documents pertaining to adverse incidents involving substantially the same condition or treatment as that sought by the requesting patient; that the health care provider must identify records of adverse medical incidents using the process for identifying “adverse incidents” that are reportable to AHCA; that the health care provider can charge a fee for the staff time necessary to respond to the request as well as for copies of records; and that the Amendment is not retroactive.
In the consolidated cases of Buster and Bowen, the Florida Supreme Court found that Amendment 7 took effect on the date of the election, November 2, 2004, and applies to records created before that date. The Court invalidated, as inconsistent with Amendment 7, most of the substantive and procedural provisions of the statute. Thus, any patient, or prospective patient, may request records relating to any adverse medical incidents, even if they bear no relationship to any care the patient has sought or may seek. Further, the records are subject to discovery in court or in administrative proceedings and may be admissible as evidence. The Court did preserve some of the statutory definitions and preserved the ability of the provider to charge the requestor for the cost of locating and providing the documents.
Both Florida Hospital Waterman and Notami Hospital of Florida (d/b/a Lake City Medical Center) have filed motions for rehearing and clarification. The hospitals have sought a rehearing on the question of whether Amendment 7 applies retroactively to require that providers give access to records of adverse medical incidents created before adoption of the Amendment, when the Florida Statutes unambiguously guaranteed the confidentiality of those records. In addition, the hospitals seek clarification that documents produced in response to Amendment 7 requests remain inadmissible in court; that the pre-existing grants of immunity from liability and protection from compelled testimony continue to apply to participants in self-regulation activities; and that Amendment 7 does not abrogate attorney-client privilege or work product protections. While none of these issues were raised in the cases before the Florida Supreme Court, the statutory provisions invalidated by the Court make the continued vitality of these protections unclear.
Specifically, the Court struck as unconstitutional the provisions of section 381.028 that retain the existing restrictions on “discoverability or admissibility” of records relating to adverse medical incidents, although the Court’s opinion discusses only “access” and discoverability – not admissibility.
That same provision references the continuing applicability of the pre-existing statutory provisions granting immunity from suit and protection from compelled testimony to participants in peer review, quality assurance and risk management activities. Nowhere did the Court indicate any intention to invalidate those protections. The hospitals have thus sought clarification that the Court intended to strike only that portion of the provision relating to the discoverability of records. While a plaintiff may argue that the Court’s opinion leaves doubt as to whether immunity from suit continues to exist under Florida law, the federal Health Care Quality Improvement Act, which also provides immunity from liability for participants in peer review, is unaffected by the Florida Supreme Court’s opinion.
The Court also struck the provision of section
381.028 defining a record as “the final report of any adverse medical incident.” That provision also identifies documents that do not qualify as records, including those that contain or reflect “any attorney-client communications or any attorney-client work product.” Because nothing in the Court’s opinion suggests that it intended to abrogate those privileges, the hospitals have asked the Court to clarify that point to avoid the unnecessary controversy in the trial courts that will result from any ambiguity.
During the nearly two years in which these cases were pending before the Florida Supreme Court, Shands and other hospitals requested that trial courts delay consideration of discovery requests seeking records subject to Amendment 7 until the Supreme Court ruled on the Bowen and Buster cases. Most trial courts granted these requests.
The Supreme Court’s decision in these cases will not be final until the Court has ruled on the motions for rehearing and clarification. Once the trial courts determine that the plaintiffs’ efforts to compel discovery of Amendment 7 materials may proceed, Shands and other providers will continue to dispute the discoverability of the records on a case-by-case basis based on generally applicable objections such as relevance, over-breadth, and others as appropriate.
While some provisions of section 381.028 have been invalidated, important legal protections remain intact for participants in peer review. These include the following:
◆ Nothing in Amendment 7 requires that the names of the reviewers must be revealed in the records disclosed under review, quality assurance, and risk management processes from being compelled to testify concerning the contents of those processes.
the Amendment.
◆ Because peer review committees conduct their activities on behalf of the hospital, hospitals will provide the defense for claims against medical staff members arising out of their participation in peer review activities.
The Supreme Court has been asked to clarify its opinion in the Bowen and Buster cases with respect to:
• The continuing applicability of the attorney client privilege and work product protections that apply to some records of adverse medical incidents;
• The admissibility or inadmissibility of Amendment 7 records in civil and administrative proceedings; and
• The continuing applicability of the statutory provisions protecting participants in the peer review, quality assurance, and risk manage net processes from being compelled to testify concerning the contents of those processes.
Despite the outcome of the Bowen and Buster cases, hospitals must continue to conduct peer review. Florida statutes, federal law and The Joint Commission standards continue to require hospitals to conduct peer review, as well as other quality improvement and assurance processes, in order to maintain and improve patient safety. Failure to comply with these requirements has its own consequences, including lawsuits based on claims of negligent credentialing by medical staff and the hospital.
Shands medical staff and quality departments continue to improve peer review forms and processes so that the hospital, through its medical staff, maintains effective peer review, while at the same time minimizing the potentially negative impact of documents that may be viewed out of context. Shands continues to work with the Florida Hospital Association as well as other facilities to consider the possibility of developing legislation that would comport with the Court’s opinion and yet mitigate the impact of Amendment 7 on hospital operations. 
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