Court allows discovery of 5 years of incident reports.

CASE ON POINT: Columbia Hosp. Corp. of South Broward v. Fain, 0618.170 (6/17/2009)-FL

ISSUE: There is almost universal approval of the rationale which underlies the peer review privilege. Few would question that public policy dictates that physicians, as well as other health care providers, should be free to speak their minds in critiquing the performance of a colleague without fear of repercussion, including suits for libel, and slander as well as a panorama of other theories of liability that an imaginative attorney might conjure up to use for his physician client against physicians or other providers who might have contributed to an adverse peer review, which might or might not have resulted adversely for his physician client. However, there is a significant difference from the peer review privilege and denying a party access to incident reports and/or physicians' records concerning a physician's or other health care provider's "track record" over a period of time.

CASE FACTS: Columbia Hospital Corporation of South Broward (Columbia), d/b/a Westside Regional Medical Center (Westside), a for-profit corporation, petitioned for a writ of certiorari, seeking to quash a trial court's order that denied Columbia's objections to a plaintiff's request for discovery. The issue involved an article in the State of Florida's Constitution, which allowed a plaintiff to discover records of physicians. The facts involved in the case were not disputed. Rebecca Fain, while a patient at Westside, fell from her hospital bed and subsequently died. Her estate sued Columbia for medical negligence. In the course of discovery the estate requested incident reports regarding the fall, as well as all adverse medical incident reports involving falls of patients under "fall precautions" within a five year period. Columbia objected to the request on a number of grounds, including an argument that incident reports were protected work-product. The trial court entered an order overruling many of Colulmbia's objections and requiring further proceedings on others. In Columbia's petition for certiorari, Columbia sought to quash the trial court's order. To the extent that tColumbia's petition contended that the trial court's order required production of materials that were privileged Columbia argued that that the trial court's order required production of materials that were privileged or protected, and that a threshold showing of irreparable harm necessitated invoking an appellate court's certiorari jurisdiction.

COURT'S OPINION: The District Court of Appeals of Florida denied Columbia's petition for certiorari. The court held, inter alia, that the provision in Florida law allowing discovery of prior acts of physicians was not in violation of the Constitution of the United States, as argued by Columbia.

LEGAL COMMENTARY: The Court noted that the Florida Supreme Court had already rendered an advisory opinion to the Attorney General of the State of Florida, which stated, in pertinent part: "Contrary to the clear effect upon the above two statutes, [which provided for limited discoverability of peer review proceedings], the amendment does not expressly affect either the discoverability of previous acts or the attorney-client privilege, and there is no evidence of any intent to do so. Any effect on the rule or the privilege is purely speculative; and, even if true, any such effect would not rise to the level of substantially altering or performing a function of the judiciary." Prior to the amendment, a hospital's incident reports had been generally considered protected as fact work-product and discoverable only upon a showing of need and undue hardship. However, the amendment provides, inter alia, that "any records made or received in the course of business by a health care facility or provider relating to an adverse medical incident are subject to discovery. The court observed that it certainly was not clear whether a provider or healthcare facility might, after the amendment, continue to refuse to provide an adverse medical incident report based on a fact work-product objection. The court speculated as to whether it might be necessary to draw a distinction between a fact work-product and an opinion work-product. However, the court made it clear that it need not do so in the case at bar. Peer review was not necessarily rendered "ineffective" simply because the limited discovery protections previously provided for under Florida Law were lifted by the amendment. Florida's statutes, and the Healthcare Quality Improvement Act (HCQIA) continue to provide immunity from liability for statements or opinions in peer revue proceedings. Although Florida could not enact legislation removing this immunity, or providing less protection or incentive than the HCQIA, the limited confidentiality that had previously been required by Florida Statutes, was not required under HCQIA.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island finn of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who Who in American Law, Who's Who in America and Who's Who in the World.