Patients’ Right to Know Trumps Fact Work Product Doctrine as to Reports of Adverse Medical Incidents
By: Tom Crabb
In 2004, voters passed Amendment 7 to the Florida Constitution, which gave patients the right to access “records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” In two recent cases, Florida courts held that Amendment 7 trumps the common law fact work product doctrine when it comes to reports of adverse medical incidents. The work product doctrine protects certain materials prepared in connection with litigation from discovery by the other side in a lawsuit. Work product falls into two categories: “fact” work product, which is factual information gathered or prepared in connection with a case; and “opinion” work product, which is an attorney’s mental impressions, conclusions, opinions, or theories concerning his or her client’s case. Fact work product may be subject to discovery following a showing of need, while opinion work product is essentially absolutely privileged and thus not subject to discovery. Patients in two recent cases sought production of a health care provider’s reports of adverse medical incidents, even though those reports were fact work product. In other words, does Amendment 7 trump the fact work product doctrine? The Second and Fifth District Courts of Appeal have now held that it does.
In Florida Eye Clinic v. Gmach, the plaintiff patient sought production of incident reports concerning complaints of infections and related investigations at the clinic, including investigations into possible infections and related quality improvement reports. The defendant clinic argued that Amendment 7 (now codified at Article X, Section 25 of the Florida Constitution) was not intended to eliminate common law privileges such as the work product privilege. The Court disagreed, holding that “the plain language of amendment 7 evinces an intent to abrogate any fact work product privilege that may have existed prior to the passage of amendment 7.” “Adverse medical incident” as defined in Amendment 7 includes “incidents that are reported to or reviewed by any . . . risk management . . . committee, or any representative of such committee.” The Court thus concluded that the incident reports were records relating to an “adverse medical incident” and that because Amendment 7 abrogated any fact work product privilege that may otherwise have attached to these records, they were discoverable by the patient. The Court took care to distinguish opinion work product, noting that the incident reports sought by the patient did not contain any attorney’s mental impressions, conclusions, or theories about the case and that defense counsel had not even yet been consulted about the case. The Court said that it is “hard to imagine that the voters contemplated the potential chilling effect that may result in the legal community if an attorney’s mental impressions contained in such a report could be made readily available to a requesting patient under the amendment.” Therefore in the Fifth District following Florida Eye Clinic, opinion work product remains protected but fact work product contained in such incident reports, even if prepared for potential litigation, is discoverable. Florida Eye Clinic v. Gmach, 34 Fla. Law Weekly D1080a, Case No. 5D09-64 (Fla. 5th DCA 2009).
Lakeland Regional Medical Center v. Neely presented essentially the same situation. The plaintiff patient sought discovery of reports of adverse medical incidents pursuant to Amendment 7 and the defendant hospital claimed those reports were protected by the work product doctrine because they were prepared in anticipation of litigation. The Court concluded there was “no basis to except work product materials from the reach of Amendment 7.” The hospital argued that just because the reports were prepared in anticipation of litigation by health care professionals and not lawyers, the electorate did not necessarily intend for these reports to be made available to patients. The Court concluded that Amendment 7 was intended to abrogate the existing common law work product doctrine and that the work product doctrine did not provide a substantive, vested right on which health care providers could rely. The reports of adverse medical incidents were therefore subject to discovery, notwithstanding that prior to Amendment 7 they would have been protected under the work product doctrine. Just as the Fifth District did in Florida Eye Clinic, the Second District noted that these reports did not contain opinion work product or privileged attorney-client communications, which therefore remain protected. Lakeland Regional Medical Center v. Neely, 34 Fla. Law Weekly D931a, Case No. 2D08-4102 (Fla. 2d DCA 2009). The Second District then went the extra step of certifying the question to the Florida Supreme Court as to whether Amendment 7 preempted the common law work product doctrine as it applies to existing reports of adverse medical incidents. The Supreme Court, however, concluded that it lacked jurisdiction to decide the question. We will continue to monitor this important issue.