Discovery of Adverse Medical Incidents in Florida

For years, public policy in Florida allowed doctors unfettered authority. In 2004, voters approved Amendment 7, which created a constitutional right for patients to know about a health care facility or provider’s adverse medical incidents, including medical malpractice. This right is important, but it is not total, and it remains important for plaintiffs to tailor their discovery requests appropriately.

In a 2013 case a medical center sought review of an order that it produce specific documents in a medical malpractice lawsuit. The case arose when the plaintiff sued the medical center and others in association with her surgery. During the discovery phase, the plaintiff requested all documents related to adverse medical incidents. She cited to Amendment 7.

The medical center asked the court to issue a protective order. It cited various privileges. The court ordered the medical center to produce any documents that referenced “adverse medical incident” regardless of how the document was labeled. It ignored the potential for violating attorney-client and other privileges. It denied the medical center’s request for a protective order. The defendant filed privilege logs in response.

The plaintiff served another request for production with different categories. There was no reference to adverse medical incidents or Amendment 7.

The medical center produced documents and again asserted objections. It again filed a privilege log.

The plaintiff asked the court to require the defendants to turn over the documents. She also asked for production of documents that had been identified in the defendant’s privilege logs. In her view, Amendment 7 permitted her to see them. With respect to certain documents that the defendant stated were protected by the attorney-client privilege, the plaintiff asked the court to conduct a review of the documents before ordering them to be turned over.

The plaintiff argued that even though she had not explicitly cited “adverse medical incidents,” all of her second discovery requests were essentially requesting documents related to adverse medical incidents and therefore could be discovered. She claimed one type of surgery had been converted to another type of surgery that had caused her injury. In her view that meant any document she requested about surgeries involving that type of conversion was an “adverse medical incident.”

The circuit court held a hearing on the motion to compel. While the plaintiff argued that her requests for production were limited to requests containing reports of adverse medical incidents, the defendant argued that not all the items in the privilege logs contained an adverse incident report.

The defendant asked that the court inspect the documents before ruling they should be turned over. This review would permit the court to determine which documents actually related to adverse medical incident reports before compelling production of them to the plaintiff. The court ordered the defendant to turn over documents without conducting such a review.

The defendant asked the appellate court to review the lower court’s ruling. The appellate court explained that the discovery requests were too broad. They might require the medical center to produce privileged documents having nothing to do with adverse medical incidents.

The appellate court explained that Amendment 7 permitted plaintiffs to have access to records made by a health care facility or provider relating to adverse medical incidents, meaning medical negligence, intentional misconduct or any act or default that caused injury or death to a patient. But Amendment 7 required the hospital to protect privacy.

The court found that the plaintiff was wrong in her assertion that all conversions were “adverse medical incidents.” Not all conversions resulted from medical negligence or failure. Accordingly, it found the circuit court should have determined whether documents in the privilege log related to an adverse medical incident.

If you have been hurt due to a health care provider’s negligence, contact the experienced Florida medical negligence attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585. We work hard to recover compensation from all possible sources for our clients.

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