Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Amendment 7 Update

Christine Neuhoff Associate General Counsel Shands Healthcare
3-4-2   As you will recall, in the general election of November 2, 2004, Florida voters overwhelmingly approved a constitutional amendment entitled “Patients’ Right to Know about Adverse Medical Incidents,” commonly known as “Amendment 7.” Amendment 7 provides that “patients” have a right of access to “records of adverse medical incidents.” 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. Immediately following the election, plaintiffs’ attorneys began using Amendment 7 as a basis for document discovery requests in pending litigation, claiming that the Amendment nullified the longstanding privileges that protected peer review, risk management, and quality assurance materials from use in litigation. The Florida Hospital Association and Shands HealthCare filed a lawsuit (Florida Hospital Ass’n, Inc., Shands Teaching Hosp. & Clinics, Inc. et al v. Florida Agency for Health Care Admin.) asking the court to order that Amendment 7 could not be enforced without legislative implementation because it left too many questions unanswered. Without implementing legislation, hospitals could not be certain: which records must be provided to a patient; whether and how much the health care provider could charge for copies; how quickly a health care provider respond; who qualifies as a ient”; or how broadly to define verse medical incident.” In December of 2004, the court determined that the case did not present a “justiciable controversy,” ating that these issues would have to be raised in response to a specific request for documents. At the same time, plaintiffs in medical malpractice cases across the state began asking courts to compel health care providers to turn over peer review, risk management, and quality assurance materials. In these cases, hospitals argued that the Amendment could not be enforced until the legislature clarified its terms; that the Amendment did not nullify the protections against discovery and admissibility of the records it addressed; and that the Amendment did not apply to records created before November 2, 2004. The majority of the courts that addressed these matters ruled in favor of the hospitals, finding that the Amendment was neither self-executing nor retroactive. While the decision in the Florida Hospital Association case was pending appeal, a bill, which was supported by FHA and Shands among others, was introduced in the Florida Senate to implement and clarify Amendment 7. Both the Senate and the House approved SB 938, now found at section 38 1.028 of the Florida Statutes, with only 2 senators and 3 representatives voting against it. This legislation provides, among other things: 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 criteria for reporting a Code 15; 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. Once section 381.028 became effective, health care providers cited this statute to prevent plaintiffs from obtaining peer review, risk management, and quality assurance materials in litigation. As anticipated, plaintiffs challenged the constitutionality of the legislation. Two Courts of Appeal ruled on this issue in March of this year. Both Appellate Courts held that the statute was unconstitutional in its entirety because, the courts found, the statute attempted to limit the constitutional right created by Amendment 7. One of these courts, in the case of Florida Hospital Waterman, Inc. v. Buster, found that the Amendment applied only to documents made after the effective date of the Amendment. The other court, in the case of Notami Hospital of Florida, Inc. v. Bowen, found that the Amendment applied to all records of adverse medical incidents without regard to the date they were created. These cases are currently before the Florida Supreme Court, but oral arguments have not yet been scheduled. In pending malpractice litigation, Shands and other hospitals have requested that courts delay consideration of issues concerning Amendment 7 discovery requests until the Supreme Court has ruled on the Bowen and Bustercases. Most courts have granted these requests. In the Bowen and Buster cases, the Florida Supreme Court will consider whether the implementing legislation supplements and clarifies the right created by Amendment 7. If the Supreme Court finds that any provisions of the legislation conflict with (rather than clarify) the terms of the Amendment, the Court may, nonetheless, uphold the constitutionality of the non-conflicting provisions. The Supreme Court will also consider whether Amendment 7 provides a right to access records that were created before November 2, 2004, when the Florida Statutes unambiguously guaranteed the confidentiality of peer review, risk management, and quality assurance records. If the Supreme Court upholds the constitutionality of section 381.028, or parts thereof, interpretation of specific provisions will likely be further litigated in courts around the state. If the Supreme Court strikes the entire statute as unconstitutional, that decision will not the preclude legislature from enacting a statute that conforms to the Court’s opinion. While the future of section 381.028 remains uncertain, important legal protections remain intact for participants in peer review. These include the following: • Attorney-client communications continue to be privileged. • Nothing in Amendment 7 requires that the names of the reviewers must be revealed in the records disclosed under the Amendment. • Health care providers continue to be immune from liability for participation in peer review activities. • Participants in peer review cannot be compelled in civil or administrative proceedings to testify concerning those activities. • 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. Whatever the outcome of the Bowen and Bustercases, Florida statutes, Federal law and JCAHO 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 have undertaken to improve peer review forms and processes so that the hospital, through its medical staff, continues to conduct effective peer review, while at the same time minimizing the potentially negative impact of documents that may be viewed out of context.