AMENDMENT 7 BATTLES HEAT UP THE COURTS AND LEGISLATURE

On November 2, 2004, Florida voters approved an amendment to the Florida Constitution entitled the "Patients' Right to Know About Adverse Medical Incidents", which is more popularly known as "Amendment 7". The stated purpose of Amendment 7 is to give patients the right to review, upon request, records of health care facilities or providers' adverse medical incidents, including those reports involving injury or death. The only condition attached to Amendment 7 was that a patient's identity could not be disclosed.

Litigation over Amendment 7 ensued almost immediately after it was passed by Florida's voters. Plaintiffs' lawyers began submitting discovery requests to defendant health care providers, in an effort to seek production of adverse incident reports and peer review records. Some of these requests had nothing to do with the patient or principal issue of the lawsuit, leading many providers to conclude that these requests were essentially "fishing expeditions". Moreover, many health care providers do not believe that Amendment 7, as written, supersedes the many peer review confidentiality protections established under Florida law that have been routinely upheld and enforced by Florida's courts.

In an effort to oppose these discovery requests, the Florida Hospital Association ("FHA") and a large contingent of hospitals filed suit in Tallahassee against the Florida Agency for Health Care Administration and the Florida Department of Health. These plaintiffs argued that Amendment 7 is not "self-executing", i.e., that it is necessary for Florida's Legislature to implement the provisions of Amendment 7 through the enactment of new laws. The FHA and the hospitals also argued that the Legislature had to reconcile the apparent conflict between state and federal peer review and patient privacy laws with Amendment 7's right of access to patient records. Despite the important public policy arguments advanced by the FHA and the hospitals, the court dismissed the FHA's complaint on December 7, 2004.

With the FHA's suit out of the way, individual courts across the state have been left to grapple with the issue of whether adverse incident and peer review records, clearly protected under Florida law prior to Amendment 7's passage, were now fair game in lawsuits against health care providers and facilities. To date, the courts have provided a mixed bag of results. While a few of Florida's courts have ruled that Amendment 7 provides an immediate right of access to adverse incident and peer review information, the majority of these courts have ruled that Amendment 7 is not self-executing and cannot be applied retroactively. Most courts that have considered this issue also have indicated that the Legislature needs to resolve the apparent conflict between Florida's statutory adverse incident and peer review protections, and the Amendment 7's right to access. Moreover, most of these same courts have concluded that Amendment 7 cannot be applied retroactively (i.e., to records created prior to Amendment 7's passage), as peer review records created with the expectation of confidentiality should continue to enjoy those protections.

On the legislative front, the Florida House Judiciary Committee has voted favorably on HB 1797, which implements Amendment 7 while still retaining the protections against the discoverability and admissibility of peer review records in litigation. This bill also provides immunity to all persons providing information or participating in any peer review, medical review or hospital committee, and would prevent any person who provides such information from being compelled to testify at any legal proceeding Finally, only final records created on or after November 3, 2004 would be subject to Amendment 7's disclosure provisions under 1-113 1797. It remains to be seen, however, how many of the provisions beneficial to health care providers and facilities will ultimately become law.