Before the November 2004 elections, there was a battle between plaintiff lawyers groups and physician groups — each side seeking to convince the voting public to tack on amendments to the state constitution which would sting the other side. The plaintiff lawyers won and “Amendment 7″ (access to adverse medical incident reports) became Article X, section 25 of the Florida Constitution.
The plaintiff lawyers again struck gold with the 2008 Florida Supreme Court decision in Florida Hospital Waterman, Inc. v. Buster, which essentially upheld a broad interpretation of Amendment 7 to allow plaintiffs access to gobs of previously privileged documents in the health care field.
Prior to Buster, plaintiff and defense counsel were making a fortune developing keen arguments in trial and appellate courts across the state trying to etch some new area of discovery. After Buster, things began to grow fairly quiet.
The only health care related group to win an Amendment 7 battle were nursing homes and ALFs, which were deemed not to be health care providers — consistent with a prior battle over pre-suit requirements when plaintiff lawyers were arguing that they did not have to comply with Medical Negligence Chapter 766 requirements in long term care cases.
On May 8, the Second District (Altenbernd, Casanueva, and Silberman) handed down a decision in Lakeland Regional Medical Center v. Neely which re-affirmed Buster and confirmed, at least in one intermediate appellate court, that the work product doctrine was trumped by Amendment 7 and Buster.
The Court reasoned it was “constrained” by Buster and posed a question to the Florida Supreme Court as a matter of great public importance. Our guess: it is unlikely the Court will take it and, if they do, look for the “final word” confirming the viability and breadth of Amendment 7 OR… an unexpected change of course.