Supreme Court Sides With Plaintiffs On Malpractice Records

Nov 1, 2017
Originally published on November 1, 2017 8:31 am

Warning of attempts to “whittle away” at a 2004 constitutional amendment, the Florida Supreme Court has rejected arguments by hospitals that they should be shielded from turning over records to plaintiffs in medical-malpractice cases.

The latest Supreme Court ruling came last week in a Polk County case and followed a January ruling in a Duval County case.

While the details of the cases were different, they both focused on a 2004 constitutional amendment, commonly known as Amendment 7, which was backed by plaintiffs' attorneys and was designed to expand access to medical records in malpractice lawsuits.

Records held by hospitals and other medical providers can play a key role in malpractice cases. The 2004 constitutional amendment was intended to provide access to what are known as "adverse medical incident" reports.

In the Polk County case, the Supreme Court overturned a decision by the 2nd District Court of Appeal that said Bartow Regional Medical Center did not have to turn over records that were produced during an external peer-review process by an outside company. Justice R. Fred Lewis, in a 32-page majority opinion Thursday, wrote that such reviews can't be excluded from the requirements of the constitutional amendment.

“Such a result would be directly contrary to the intent and express words of Florida voters to have greater access to adverse medical incident records than they did before the passage of Amendment 7,” Lewis wrote in an opinion fully joined by Chief Justice Jorge Labarga and justices Barbara Pariente and Peggy Quince. “Moreover, the result asserted by Bartow would provide a trap door through which hospitals could totally avoid their discovery obligations by outsourcing their adverse medical incident reporting to external, voluntary risk management committees separate from those required by the Florida statutory scheme.”

Justice Ricky Polston agreed with the outcome, though he did not sign on to the majority opinion. Justice Alan Lawson, in a dissent joined by Charles Canady, said the Polk County hospital should not have to turn over the external reports because they were prepared in anticipation of litigation.

“Applying Amendment 7's plain language consistently with this (Supreme) Court's holding regarding its intent, like the Second District, I would conclude that the expert reports at issue --- prepared at the request of the hospital's counsel, outside of the ordinary peer review process, in anticipation of imminent litigation --- are not `records made or received in the course of business' subject to disclosure pursuant to Amendment 7,” Lawson wrote.

Medical malpractice has long been a highly contentious legal and political issue in Florida. In 2004, that resulted in a ballot war between plaintiffs' attorneys and medical groups, with voters approving three constitutional amendments. Those amendments required the disclosure of adverse medical-incident reports; prevented physicians from being licensed if they have committed three incidents of medical malpractice; and sought to cap plaintiffs' attorney fees.

Litigation about the medical-records amendment has spent years moving through the legal system.

Last week's Supreme Court decision came in a lawsuit filed by Amber Edwards, who went to Bartow Regional Medical Center in 2011 with stomach pains and was diagnosed with gallstones. During a procedure, her common bile duct was cut, later requiring her to be transferred to Tampa General Hospital for emergency corrective surgery, according to the Supreme Court majority opinion.

Edwards sued the hospital and a physician, touching off the years-long battle about providing medical records.

Meanwhile, in the January ruling in the Duval County case, the Supreme Court rejected arguments that a federal patient-safety law shielded the Baptist Health System from turning over some documents in a malpractice lawsuit. The U.S. Supreme Court early this month declined to take up an appeal by the hospital system.