Last month we reported that the Second DCA ruled that Amendment 7 (Patient’s right to know about adverse medical incidents) trumped work product privleges.
The Fifth District has done the same but left the door open as to whether attorney-client privileges may still avoid disclosure. Will health care providers start having their counsel review piles of past incident reports?
In Florida Eye Clinic v. Mary T. Gmech, the plaintiff sought medical incident reports under article X, section 25 of the Florida Constitution (Amendment 7, when it was put to the voters). The Panel (Cobb, Torpy, and Cohen) held that “we conclude the plain language of amendment 7 evinces an intent to abrogate any fact work-product privilege that may have existed prior to the passage of amendment 7.”
“Fact work product” includes fact information gathered in connection with a potential case; “opinion work product” is the lawyer’s impressions, conclusions, opinions or theories. The former can be overcome by a sufficient showing of need. ”Opinion work product,” on the other hand, has a nearly absolute privilege.
In this case, the lawyers never saw the incident reports AND, likewise, the reports did not include their opinion work product. The court held that Amendment 7 was intended to overcome the fact work product privilege — not opinion work product. There was likewise a suggestion that Florida Rule of Civil Procedure 1.280, which included the privilege, can’t be overcome by a constitutional amendment.
Do not expect this, or the Second DCA’s, opinion to be the last word. There appear to be endless permutations to this issue; meanwhile, given tort reforms affect on the number of medical negligence cases, med mal lawyers on both sides seem to have endless energy to fight out Amendment 7 technicalities.
A fact-specific issue in this case is the fact that the incident reports were never reviewed by counsel. Health care providers may consider having all incident reports reviewed by counsel — arguably including impressions as well. Obviously, that’s not without risk and expense.