Peer Review Privilege/Fla. Amendment 7

Notami Hosp. of Fla., Inc. v. Bowen, No. 1D05-4149 (Fla. App. Apr. 21, 2006)

The First District Court of Appeal of Florida held that Amendment 7 to the Florida Constitution was self-executing and should be retroactively applied. Amendment 7 provides that patients have the right to access any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident. The Amendment defines in detail what medical records are discoverable and who is entitled to discovery and, and defines the effective date as the date it is approved by the voters.

A hospital, defending against three medical malpractice actions claiming that it negligently credentialed, retained or supervised one of its surgeons, sought to protect its credentialing file and related documents surrounding the peer review proceedings of the surgeon, based on protection granted by a Florida peer review statute. The Court found that a statute which purported to implement Amendment 7 significantly limited what records were discoverable under the Amendment. The Court struck the statute, finding that the Amendment was self-executing and did not require an implementing statute. The Court also held that the Amendment was intended to be retroactive, to include records created prior to Amendment 7's effective date, for two reasons. One, an amendment would only be found to be unconstitutionally retrospective if it impaired a substantive, vested right. The Court stated that the hospital did not have a vested right in maintaining the confidentiality of peer review information concerning an adverse medical incident. Second, the plain language of the Amendment included "any" record relating to any adverse medical incident and included individuals who had previously undergone treatment in its definition of "patient." The Court interpreted these phrases as a clear intent to include records created prior to the Amendment's effective date. In this regard, the Court differed from the conclusion of the Fifth District Court of Appeal a month earlier that Amendment 7 was not retroactively effective.