2017 In Review: Amendment 7 and the End of Peer Review Protection

Amendment 7 to the Florida Constitution provides patients “a right to have access to any records made or received in the course of business by a health care facility or provider relating any adverse medical incident.” Under Amendment 7, an adverse medical incident includes “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 . . . .”

As previously discussed, in early 2017 the Supreme Court of Florida issued its opinion in Charles v. Southern Baptist, 209 So.3d 1199 (Fla. 2017). This opinion explored the interplay of Amendment 7 (Art. X, § 25, Fla. Const.) and the Federal Patient Safety and Quality Improvement Act (42 U.S.C. §§ 299b-21 to 26) (“FPSQIA”), which creates a voluntary, confidential system for the sharing of health care errors with the intent of improving the quality of medical care and patient safety. To encourage participation, the FPSQIA also incorporates a privilege which protects from discovery in legal proceedings any “patient safety work product” which is actually reported to a “patient safety organization” under the act. In Charles, the Court determined that the FPSQIA did not preempt Amendment 7 and, as a result, that Southern Baptist and other health care providers could not shield peer review documents from production by voluntarily placing them within the reporting system created by the FPSQIA. This decision dealt a strong blow to the peer review privilege created by the FPSQIA and previously enjoyed by Florida practitioners.

In late 2017, the Supreme Court of Florida again considered Amendment 7 in Edwards v. Thomas, 229 So.3d 277 (Fla. 2017). In Edwards, the plaintiff brought a medical negligence action against Bartow Regional Medical Center and, in that action, sought discovery of a number of records from Bartow. Bartow objected to the production of some of the requested records on the basis that they were external peer review records which were obtained pursuant to the request of their attorney and, as a result, were not “made or received in the course of business” as Amendment 7 requires. Bartow also asserted that the records were protected work product since they were obtained at the direction of their attorney in furtherance of their legal defense.

The Court first looked at the plain language of Amendment 7 and held that it “was aimed at eliminating all discovery restrictions on ‘any records . . . relating to any adverse medical incident.’” After noting that “[a]ny contrary conclusion would provide hospitals with a blueprint as to the method to evade their constitutionally-mandated discovery requirements[,]” the Court then concluded that the reports “are the type that are ‘made or received in the course of business by a health care facility or provider” and were discoverable. Notably, the Court went on to hold that the records were also not protected by the work product privilege since the plain language of Amendment 7 abrogated any fact work product privilege which may have attached to the records.

Together, these two opinions have effectively abrogated any protection for peer review materials in Florida. In both opinions, the Court evinced an intent to broadly interpret and apply Amendment 7 and to protect for the citizens of Florida “the rights they specifically voted to include in their state constitution.” Accordingly, it is likely that any future challenges or claims of protection will be met with similar rejection.

Prepared by:
Denay Brown, Esq. 
[email protected]
P. 850.222.0720