In 2004, the Florida Constitution was amended to add Amendment 7, which provides in part:
(a) In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident …
(3) The phrase “adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to any
governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.
The issue before the Sixth District Court of Appeal State of Florida was whether Amendment 7 authorized the discovery of otherwise privileged documents in the defendant surgery center’s credentialing file that were sought by the plaintiff in support of his negligent credentialing claim: “We begin by acknowledging that the credentialing committee’s file contains documents that it considered in its decisionmaking process and thus would largely be protected by sections 395.0191(8), 395.0193(8), and 766.101(5), Florida Statutes (2022) (collectively the “Peer Review Statutes”), if not for the possible impact of Amendment 7. PDSC contends that all of the trial court’s rulings were based on the court’s erroneous belief that simply asserting a negligent credentialing claim meets Amendment 7’s definition of “adverse medical incident” and eliminates all statutory protections contained in the Peer Review Statutes. PDSC claims that the requested documents are simply “general credentialing documents” for Dr. Regala and thus do not pertain to a specific adverse medical incident, as required by Amendment 7.”
The Florida appellate court stated in its September 6, 2024 opinion: “where allegations are made but have not been established or proven through trial or pretrial adjudication such as summary judgment—does not constitute an adverse medical incident under Amendment 7. Therefore, a party cannot use Amendment 7 to obtain otherwise privileged discovery of the acts underlying either the medical malpractice cause of action or the negligent credentialing cause of action if an independent adverse medical incident has not first been established. Here, McDonald relies solely on his allegations of negligent credentialing and medical malpractice in the underlying case to argue Amendment 7 requires the credentialing file to be produced. Allegations do not establish an adverse medical incident under Amendment 7, and documents otherwise protected under the Peer Review Statutes cannot be produced.”
“Accordingly, because no adverse medical incident has yet been established in this case, the only requested documents or records that are discoverable are those that are not protected under the Peer Review Statutes. The documents considered by PDSC in the credentialing process that are not related to an established adverse medical incident remain protected by the Peer Review Statutes. We therefore grant the petition and quash the order requiring discovery of, essentially, the entire credentialing file based on Amendment 7.”
“We sua sponte certify to the Florida Supreme Court, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), the following question as one of great public importance: DOES WEST FLORIDA REGIONAL MEDICAL CENTER, INC. v. SEE, 79 SO. 3D 1 (FLA. 2012), REQUIRE A HEALTH CARE FACILITY TO PRODUCE ALL DOCUMENTS CONTAINED IN ITS CREDENTIALING FILE AND/OR CONSIDERED BY THE CREDENTIALING COMMITTEE WHEN SOUGHT BY A PATIENT LLEGING CAUSES OF ACTION FOR NEGLIGENT CREDENTIALING AND MEDICAL MALPRACTICE?”
Source Regala, M.D. v. McDonald, Case No. 6D2023-1069.
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