December 26, 2019

The District Court of Appeal of Florida Second District (“Florida Appellate Court”) held, in its opinion filed on December 11, 2019, that it was “clear that the trial court departed from the essential requirements of law. Its order requiring Tarpon Springs to produce “each and every record that identifies each and every time Dr. Cappiello became Board Eligible” is overbroad because it requires disclosure of privileged documents considered by the hospital board in its hiring and credentialing of Dr. Cappiello.”

The Underlying Medical Malpractice Claim

Donna White filed her Florida medical malpractice lawsuit against Tarpon Springs Hospital Foundation, Inc. (“Tarpon Springs”) and Dr. Angelo Cappiello for medical malpractice that allegedly resulted in the death of her husband. During discovery, she asked the hospital to produce every record that “identifies each and every time Dr. Cappiello became board eligible by the American Board of Internal Medicine” prior to October 15, 2015. After a hearing on a motion to compel this discovery, the trial judge ordered Tarpon Springs to provide the requested documents, but only as far back as three years. Tarpon Springs petitioned the Florida Appellate Clourt for a writ of certiorari, arguing that the discovery order is overbroad and will require production of documents privileged under section 395.0191, Florida Statutes (2018).

Section 395.0191, Florida Statutes (2018)

Section 395.0191(8), Florida Statutes (2018), prohibits the discovery of “investigations, proceedings, and records” of a hospital board “in any civil action against a provider of professional health services arising out of matters which are the subject of evaluation and review by such board.” This privilege is intended to provide that degree of confidentiality necessary for the full, frank medical peer evaluation which the legislature sought to encourage. This privilege extends not only to documents created by the board, but to any document considered by the committee or board as part of its decision-making process. However, documents otherwise available from original sources are not to be construed as immune from discovery merely because they were presented during proceedings of such board. In other words, a document that a party secures from the original source is not privileged merely because it was presented during peer review committee or board proceedings.

However, the Florida Constitution was amended in 2004 to grant patients 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.” Art. X, § 25(a), Fla. Const. Known as Amendment 7, this amendment partially trumps the application of the statutory discovery protections set forth in section 395.0191.

More specifically, Amendment 7 creates a constitutional right to access records considered by a hospital board that would otherwise be protected from discovery by section 395.0191, provided that those records concern adverse medical incidents. However, the amendment does not extend entitlement to documents that contain general credentialing information unrelated to an adverse medical incident.

The plaintiff in the Florida medical malpractice case the Florida Appellate Court was deciding argued that negligence by Tarpon Springs in its credentialing process led to Dr. Cappiello being allowed to treat Mr. White, resulting in the “medical incident” that lead to his death. The Florida Appellate Court stated that a document relates to an “adverse medical incident” when it relates to a specific incident involving a specific patient that caused or could have caused injury to or the death of that patient. The Florida Appellate Court held that because there is no established adverse medical incident to which the documents of Dr. Cappiello’s training relate, the trial court departed from the essential requirements of the law in ordering the production of those documents, and therefore quashed the trial court’s discovery order “insofar as it improperly requires the Tarpon Springs hospital board to disclose the contents of its credentialing records for Dr. Cappiello.”

Source Tarpon Springs Hospital Foundation, Inc. v. White, Case No. 2D19-603.

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