Developments In Keeping the Evaluation of Adverse Incidents Confidential
— Hospitals across the country should take note of these developments in Florida in order to understand best practices for protecting their internal reviews and evaluations.

In 2004, the availability of hospital records regarding adverse incidents in Florida changed dramatically. Prior to that date, statutes that protected the confidentiality of the peer review process § 395.0193 and § 766.101, credentialing § 395.0191, risk management reports of adverse incidents § 395.0197 and risk management reports of quality assurance § 766.1016, provided hospitals with confidentiality in their internal review.

The courts recognized that these privileges were “[d]esigned to provide that degree of confidentiality necessary for the full, frank medical peer evaluation… .” Crugar v. Love, 599 So. 2d 111 (Fla. 1992). The legislature had determined that without the privilege, the peer review process would not be honest and beneficial. Feldman v. Glucroft, 522 So. 2d 798 (Fla. 1988). These statutory privileges had the effect of preventing the discovery of otherwise relevant information in litigation. Holly v. Auld, 450 So. 2d 217 (Fla. 1984).

With the passage of what has become known as Amendment VII, public policy was flipped to the position that “disclosure of information [ ] will allow patients to better determine from whom they should seek health care, evaluate the quality and fitness of heath care providers currently rendering service to them, and allow them access to information gathered through the self-policing process during the discovery period of litigation… .” Florida Hospital Waterman, Inc. v. Buster, 932 So. 2d 344 (Fla. 5th DCA 2006). Under Amendment VII, a patient was given a right to access records of any adverse medical incident and any record made or received in the course of business. The language of the Amendment was interpreted broadly to confer upon any person who is receiving or has received medical care the right of access to any document pertaining to medical negligence, intentional misconduct, and any act of neglect of a facility or provider which caused or could have caused injury or death to a patient. Florida Hospital Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008). There is no limitation on whether the adverse incident is the same or similar to the incident being litigated. Ampuero-Martinez v. Cedars Healthcare Group, 139 So. 3d 271 (Fla. 2014). Many asked if there was any confidential evaluation that a hospital could perform.

Soon after Amendment VII was enacted, some hospitals began attempting to build confidentiality through the involvement of an attorney in the review of an adverse incident. Courts have since determined that Amendment VII does not vitiate the opinion work-product privilege, but it does supersede the fact work-product privilege. Fla. Eye Clinic, P.A. v. Gmach, 14 So. 3d 1044 (Fla. 5th DCA 2009). Because of this distinction, it is not enough for a hospital’s attorney to simply be present during an adverse incident review. Conferring privilege through work-product requires the attorney to inject her mental impressions, conclusions, opinions and theories. Even opinions communicated by the hospital’s employees to the attorney are not protected from Amendment VII. Acevedo v. Doctors Hosp. Inc., 68 So. 3d 949 (Fla. 3d DCA 2011).

Another avenue for obtaining confidential evaluation of an adverse incident is an external medical review. The application of Amendment VII to external medical reviews for purposes of litigation was recently reviewed, and the Second District held that external medical reviews maintain confidentiality. Bartow HMA, LLC v. Edwards, 175 So. 3d 820 (Fla. 2d DCA 2015). The court determined that an external medical review done for litigation was not a record “[m]ade or received in the course of business,” nor was it a record pertaining to an adverse incident because it was not a functional equivalent of a facility’s internal peer review. However, the external review cannot be used as a vehicle to outsource the internal peer review, as the court noted that their decision would have been different if there was no internal peer review of the incident.

Also important is that the Second District has clarified that documents pertaining to adverse medical incidents in general, but not related to a specific adverse medical incident, are not covered under Amendment VII. Bartow HMA, LLC v. Kirkland, 171 So. 3d 783 (Fla. 2d DCA 2015). For example, the court specified that general policies regarding handling of patient cases, reports from departments that do not reference adverse incidents, credentialing committee reports, committee minutes regarding hiring and hospital development plans, and documents generally related to handling sentinel events are not covered under Amendment VII.

Arguably, the most valuable tool in keeping adverse incident reviews confidential is the use of a Patient Safety Evaluation System (PSE) pursuant to the federal Patient Safety and Quality Improvement Act (PSQIA). In 2005, the federal PSQIA was signed into law, and it embraced policy opposite to that embodied by Amendment VII. It conferred confidentiality on a review to encourage providers to share information without fear of liability. The PSQIA provides for confidential review of medical errors when facilities opt to create a PSE that collects information and forwards it to a Patient Safety Organization (PSO) for evaluation and feedback. The PSO must also share information with the Network of Patient Safety Databases. The First District Court recently held that documents put into the PSE for reporting to a PSO are confidential, preempting Amendment VII. Southern Baptist Hosp. of Fla., Inc. v. Charles, 178 So. 3d 102 (Fla. 1st DCA 2015). The First District held that this confidentiality also applies if the document serves the dual function of satisfying a state reporting requirement—such as incident reports required under § 395.0197.

In conclusion, while there are limited avenues for a hospital to keep their review of adverse incidents confidential, a hospital does have the ability to maintain some level of confidentiality through use of the tools outlined above. It is vital to know what information remains protected and what information is not covered by Amendment VII so that plaintiff’s counsel is not provided unnecessary ammunition in litigation.

As of right now, every other state has a statute in effect which insulates the peer review process from litigation discovery.  However, Florida too had a broadly written statute which, until Amendment VII was enacted, provided strong confidentiality of the peer review process.  As happened in Florida, the protections in other states could be wiped out with a similar constitutional amendment.  In states which have public referendums to enact constitutional amendments, there is no guarantee the majority of the electorate will know or understand the implications of such an amendment on the candidness and effectiveness of the peer review process.  In addition, courts in many states have nibbled around the edges of the privilege for unusual circumstances such as statements made by the attending physician, criminal cases, and employment disputes.  Should the privilege continue to erode in your state, hospitals there should take note of these developments in Florida in order to understand best practices for protecting their internal reviews and evaluations.

David R. Bear is an associate in the Health Care Department in the Orlando, Florida office of Marshall Dennehey Warner Coleman & Goggin. He focuses his practice on the defense of hospitals, medical providers including physicians and nurses, assisted living facilities, and businesses in matters involving medical malpractice, premises liability, and long-term care. He may be reached at drbear@mdwcg.com.