APPELLATE COURTS ISSUE OPINIONS ON AMENDMENT 7

Brief History:
On November 2, 2004, the voters of Florida approved Amendment 7 sponsored by the Academy of Florida Trial Lawyers. Amendment 7 created a constitutional right for persons to have access to records of a health care facility's or provider's adverse medical incidents, including medical malpractice and other acts which have caused or have the potential to cause injury or death. During the 2005 legislative session, the Legislature enacted Section 381.028, Florida Statutes, to implement the provisions of Amendment 7.

New Rulings:
In the past month, two District Courts of Appeal in Florida have finally issued some long-awaited decisions involving Amendment 7 and Section 381.028, Florida Statutes.

On February 10th, the District Court of Appeal for the Second District issued an opinion in a case involving Bayfront Medical Center. In that case, Bayfront argued that Amendment 7is not self-executing and requires legislative implementation. During the course of the litigation, the 2005 Legislature enacted Section 381.028, Florida Statutes. The Court held that, in light of the enactment of Section 381.028, there was no reason to decide on whether Amendment 7 is self-executing or not, and dismissed the petition as moot.

On March 10th, the District Court of Appeal for the Fifth District issued its decision in a case involving Florida Hospital Waterman and the impact of Amendment 7 on existing peer review protections. In that case, the Court held that Amendment 7 (1) preempts the statutory peer review privilege to the extent that the information may be obtained through discovery during litigation; (2) should only be applied prospectively after November 2, 2004; and (3) is self-executing.

As the decision changes Florida law so significantly, the Court certified the three issues to the Florida Supreme Court as matters of great public importance. It is too early to know whether the Supreme Court will accept jurisdiction of the case and finally resolve the many unanswered questions surrounding Amendment 7.

The question of whether Section 381.028 is constitutional or not was not before the Court in Florida Hospital Waterman, and therefore, the Court did not rule on that question. The Court did, however, state that they rejected the interpretation of Amendment 7 given the Legislature in Section 381.028, and that they were "not much impressed or persuaded by the legislative interpretation of Amendment 7 pronounced in Section 381.028."

What These Decisions Mean To You:
Until we see if the Supreme Court accepts jurisdiction of the Florida Hospital Waterman case and reaches a decision, it appears that the case will have statewide application. That means that previously protected peer review information and documents anywhere in the state that were created on or after November 2, 2004 will be obtainable and discoverable during the course of litigation by a patient against a health care provider. Whether this ruling stands, is up to the Supreme Court.

It is very important to note, however, that the Court in Florida Hospital Waterman, seemed to provide us with a signal as to how peer review can be restructured in the future to avoid the impact of Amendment 7. The Court voluntarily noted that Amendment 7 "does not profess to affect the work-product and attorney-client privileges." The Court was seemingly indicating that if peer review activities in hospitals are restructured so as to comply with the requirements of the attorney work-product privilege, they will be exempt from discovery even under Amendment 7.