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Bartow HMA, LLC, et al. v. Amber Edwards, et al., Case No. 2D14-3450 (2nd DCA)

In Edwards, the Second District considered whether certain attorney request external peer review reports were discoverable under Amendment 7 in a medical malpractice proceeding. The court ruled the reports did not fall within the ambit of Amendment 7 and were privileged.

In the suit, the plaintiff alleged that her surgeon severed her common bile duct during gallbladder removal surgery. She alleged that the hospital was liable for the injuries caused by the surgeon and various unnamed nurses based on theories of agency, apparent agency and vicarious liability. She also alleged the hospital was directly responsible for negligent hiring and non-delegable duties. In discovery, the plaintiff sought production of all documents created within five years of the incident relating to the hospital’s investigation or review of the surgeon’s care and treatment of any patient. She cited Amendment 7 as her authority for the request. Eventually, the hospital produced a privilege log asserting privilege over certain reports relating to attorney requested external peer review. The trial court found the reports to be privileged, but ruled that Amendment 7 preempted the privilege so that any documents relating to adverse medical incidents were discoverable. The court compelled production of all documents relating to the hospital’s peer review of adverse medical incidents involving the surgeon, including certain external peer review reports. The hospital appealed, challenging the portion of the order requiring production of external peer review reports, but produced internal peer review reports.

The Second District began with a history of Amendment 7. Florida statutes protect from disclosure health care facility or provider peer review conducted by a medical review committee or governing board of licensed hospital facilities. Amendment 7 preempts the statutory discovery protections for the peer review process, by providing patients a right of access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident. The hospital here argued that the external peer review reports do not fall within the ambit of Amendment 7 because they were not made or received in the course of business. The reports were made at the request of the hospital’s counsel by letter to the director of client services at a business called M.D. Review. The external peer review report would later be prepared by a physician, and provides a case overview, findings of fact, discussion and conclusion as to whether the standard of care was met. Applying the ordinary and plain meaning of “course of business,” the Second District found that documents are kept in the ordinary course of business if they are kept pursuant to a statutorily mandated duty. The court found that while hospitals are statutorily required to establish internal risk management programs to investigate and respond to adverse incidents, they are not statutorily required to retain external experts to evaluate adverse medical incidents. Thus, the external peer review reports were made for purposes of litigation and not to fulfill a statutory duty. While other records may be kept in the course of business even in the absence of the a statutory duty, the Second District found that records created by experts retained for purposes of litigation are not kept in the course of regularly conducted business. Therefore, the external peer review reports fell outside the ambit of Amendment 7.

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