If ever there was a reason to drag out the 19th century expression, “beating a dead horse,” it has to be in relation to the ongoing dispute over Florida’s Amendment 7 passed in 2004.
While we expect no dramatic change in the very broad state constitutional amendment regarding patient’s access to previously-protected adverse incident documents, we see no end in sight to the appeals slowly narrowing issues, few of which are getting resolved in favor of health care providers (although the appellant in this case may fairly claim at least a partial victory).
The Fourth District issued a revised opinion on August 19, 2009
in Columbia Hospital Corporation of South Broward d/b/a West Side Regional Medical Center v. Rebecca Fain. Rather than going through the long and winding road of Amendment 7 cannon, here are the salient points:
* No ruling on work product or attorney client privilege issues; court stated, however, that the Florida Supreme Court’s 2004 advisory opinion did not indicate that the privilege trumps an Amendment 7 request;
* Court intimated that “a distinction may need to be drawn between fact work product and opinion work product.” This may be a vague reference to Fifth DCA’s Florida Eye Clinic v. Gmech or the Second DCA’s Lakeland Regional Medical Center v. Neely;
* Standard discovery objections do not apply to
an Amendment 7 request (overbroad, irrelevent, burdensome);
* Under F.S. 381.028, the health care provider is entitled to reasonable payment — trial court judges may (wisely) take a cue from this case and take the issue of costs under advisement;
* Federal Supremacy Clause and Health Care Quality Improvement Act (HCQIA) do not preempt Amendment 7;
* Article I, Section 10 of the federal Constitution (impairment of contracts) is not violated by Amendment 7.