On October 26, 2017, in Edwards v. Thomas, et al. (SC15-1893), the Supreme Court of Florida reversed a decision of the Florida Second District Court of Appeal, holding that an external peer review report prepared in anticipation of a lawsuit was discoverable and not protected by the attorney work product privilege. The case involved interpretation of a 2004 amendment to the Florida Constitution (Amendment 7), which provides that “patients have a right to have 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.” Significantly, Amendment 7 defines the phrase “adverse medical incident” as “medical negligence, intentional misconduct and 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, including, but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials or similar committee, or any representative of any such committees.”

By way of background, the case came to the Supreme Court of Florida after the Florida Second District Court of Appeal determined that an analysis of a medical malpractice claim prepared by an external peer review company upon the request of an attorney was protected by the attorney work product privilege. The Supreme Court of Florida reversed the decision of the Florida Second District Court of Appeal, finding that the analysis of the external peer review company was not protected by the privilege, since Amendment 7 requires a health care provider to produce any records made or received in the course of business that relate to an adverse medical incident.

The case represents major change for Florida patients, health care providers and attorneys, because it facilitates the public disclosure of formerly privileged peer review documents, even those that are expressly prepared for litigation purposes. Significant elements of the case include the following:

  1. No Limitation on Types of Discoverable Adverse Medical Incident Reports. The Supreme Court of Florida looked to the plain language of Amendment 7 and concluded that “the language contains no limitation on the types of adverse medical incident reports that are now discoverable.” The court determined that Amendment 7 was aimed at eliminating all discovery restrictions on any records relating to any adverse medical incident.
  2. External Peer Review Committees Fall within Amendment 7’s Purview. The court examined whether an external peer review committee constitutes a “similar committee” as set forth in Amendment 7’s definition of “adverse medical incident,” such that the reports of the committee would fall within the purview of Amendment 7 and therefore be discoverable. The court determined that the external peer review committee at issue in Edwards qualified as a similar committee under Amendment 7, because it analyzed incidents of the type reported to any health care facility peer review, risk management, quality assurance or credentials committee. The court further reasoned that, if external peer review committees are not “similar committees,” health care providers could participate in and seek out voluntary peer review committees for the purpose of excluding the reports of such committees from the purview of Amendment 7. Such an approach would lead to an illogical result contrary to the intent of the amendment.
  3. External Peer Review Reports Are Made In the Course of Business. In a surprising element of the decision, the court determined that Amendment 7’s reference to records “made or received in the course of business” includes records produced by external peer review committees in anticipation of litigation. The court reasoned that “maintaining records such as those produced by the external peer review committee would, in fact, be the type of reports that hospitals would maintain or receive in their course of business, even in the absence of any statutorily-mandated duty to do so.”
  4. Reports Are Not Privileged without the Opinion of Counsel. In determining that no attorney work product privilege applied to the external peer review records at issue in Edwards, the court reasoned that the records were not privileged, because they did not contain the mental impressions, conclusions, opinions or theories of an attorney. The court stated, “If merely having an attorney request records following an adverse medical incident cloaks the facts with secrecy, the express constitutional right is emasculated and ultimately erased.” The court also pointed out that no communications with counsel were included in the record.

Under this new precedent, even a report from an expert expressly hired by an attorney to assist with pending litigation could be subject to disclosure under Amendment 7. The relevant constitutional language provides that “patients have a right to have 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.” With the Supreme Court of Florida having now settled that “records created by an expert retained for the purposes of any litigation” may be deemed to be kept “in the regular course of business,” the implication is that any expert report that “relates to an adverse medical incident” falls within the scope of Amendment 7. A report created by an expert expressly retained to assist with pending medical negligence or similar litigation would seem to “relate to an adverse medical incident,” thereby opening the door to its disclosure.

Notably, two justices dissented on the grounds that legal counsel requested the reports at issue in Edwards for the purpose of litigation from a company that does not perform routine reviews in medical negligence or other similar cases. The dissent also pointed out that the legislative history of Amendment 7 expressly clarified that it was not intended to destroy the work product doctrine or the attorney-client privilege. The full text of the Edwards decision, including the dissent, is available here.