Supreme Court sides with plaintiffs on malpractice records

TALLAHASSEE, Fla. – Warning of attempts to “whittle away” at a 2004 constitutional amendment, the Florida Supreme Court has rejected arguments by hospitals that they should be shielded from turning over records to plaintiffs in medical-malpractice cases. The latest Supreme Court ruling came last week in a Polk County case and followed a January ruling in a Duval County case. While the details of the cases were different, they both focused on a 2004 constitutional amendment, commonly known as Amendment 7, that was backed by plaintiffs’ attorneys and was designed to expand access to medical records in malpractice lawsuits. Records held by hospitals and other medical providers can play a key role in malpractice cases. The 2004 constitutional amendment was intended to provide access to what are known as “adverse medical incident” reports. In the Polk County case, the Supreme Court overturned a decision by the 2nd District Court of Appeal that said Bartow Regional Medical Center did not have to turn over records that were produced during an external peer-review process by an outside company. Justice R. Fred Lewis, in a 32-page majority opinion Thursday, wrote that such reviews can’t be excluded from the requirements of the constitutional amendment. “Such a result would be directly contrary to the intent and express words of Florida voters to have greater access to adverse medical incident records than they did before the passage of Amendment 7,” Lewis wrote in an opinion fully joined by Chief Justice Jorge Labarga and justices Barbara Pariente and Peggy Quince. “Moreover, the result asserted by Bartow would provide a trap door through which hospitals could totally avoid their discovery obligations by outsourcing their adverse medical incident reporting to external, voluntary risk management committees separate from those required by the Florida statutory scheme.” Justice Ricky Polston agreed with the outcome, though he did not sign on to the majority opinion. Justice Alan Lawson, in a dissent joined by Charles Canady, said the Polk County hospital should not have to turn over the external reports because they were prepared in anticipation of litigation. “Applying Amendment 7’s plain language consistently with this (Supreme) Court’s holding regarding its intent, like the Second District, I would conclude that the expert reports at issue — prepared at the request of the hospital’s counsel, outside of the ordinary peer review process, in anticipation of imminent litigation — are not `records made or received in the course of business’ subject to disclosure pursuant to Amendment 7,” Lawson wrote. Medical malpractice has long been a highly contentious legal and political issue in Florida. In 2004, that resulted in a ballot war between plaintiffs’ attorneys and medical groups, with voters approving three constitutional amendments. Those amendments required the disclosure of adverse medical-incident reports; prevented physicians from being licensed if they have committed three incidents of medical malpractice; and sought to cap plaintiffs’ attorney fees. Litigation about the medical-records amendment has spent years moving through the legal system. Last week’s Supreme Court decision came in a lawsuit filed by Amber Edwards, who went to Bartow Regional Medical Center in 2011 with stomach pains and was diagnosed with gallstones. During a procedure, her common bile duct was cut, later requiring her to be transferred to Tampa General Hospital for emergency corrective surgery, according to the Supreme Court majority opinion. Edwards sued the hospital and a physician, touching off the years-long battle about providing medical records. Meanwhile, in the January ruling in the Duval County case, the Supreme Court rejected arguments that a federal patient-safety law shielded the Baptist Health System from turning over some documents in a malpractice lawsuit. The U.S. Supreme Court early this month declined to take up an appeal by the hospital system. News Service of Florida


About John Fagan

John is a Jacksonville native who grew up on the First Coast. He graduated from Bishop Kenny High School in 1975 and went to college at Florida State University where he completed a 4-year program in 3 years. John graduated from the Florida State University College of Business in 1978 and went straight into Florida State University College of Law. While in law school, John earned a position on the prestigious Law Review Board serving as its Business Editor. As a law student, John studied in the Oxford program. He also interned with the Florida Legislature working in the Florida House of Representatives Criminal Justice Committee. John was admitted to the Florida Bar in 1981. John began his legal career as a law school intern in the State Attorney's Office in Jacksonville in 1981. After his internship, legendary State Attorney Ed Austin hired John as a full-time Assistant State Attorney for the Fourth Judicial Circuit (Clay, Duval, and Nassau Counties). As a prosecutor, John tried jury and non-jury trial on charges ranging from DUI to Murder. In 1983, John moved from the State Attorney's Office to begin his career in private practice. He has practiced law for 30 years on the First Coast. For the last 20 years, John and his family have made Clay County their home. John limits his practice to personal injury and disability cases. While there are many fine attorneys in Clay County, John is one of only a few Clay County attorneys who limit their practice to personal injury and disability cases. John takes pride in helping clients resolve injury claims in ways that avoid the stress, uncertainty, and the expense of unnecessary litigation. Professional Activities John is the past President of the Clay County Bar Association and has served on the Board of the Clay County Bar Association from 2009-2013. He is an active member of the Florida Bar, and the Federal Bar of the Middle and Southern Districts of Florida. He is also a member of the American Association of Justice, the Florida Association of Justice, the National Organization of Social Security Claimants' Representatives, and the National Organization of Veterans' Advocates. Service to the Community John is involved in the Clay County Community serving as a member and Director of the Rotary Club of Orange Park, of the Clay County Bar Association, and the Putnam County Bar Association.
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