In 2004, Florida citizens voted overwhelmingly in favor of a state constitutional amendment, known as “Amendment 7,” giving them the right to know about adverse medical incidents involving health care facilities and providers. This reflected the desire of the citizenry to cut through the red tape of the hospital's usual claims that such information was shrouded by “peer review” or “risk management” privileges recognized by Florida law.

Despite the clear policy choice evidenced by this vote, Florida hospitals have made concerted, intensive and unrelenting efforts to thwart the will of the voters. For example, shortly after the adoption of Amendment 7, the hospitals were able to get their allies in the Florida legislature to pass a statute purporting to “implement” the constitutional amendment but which in reality cut away and limited the right to obtain such information. Thus, the new statute stated that Amendment 7 would have no effect on existing privilege statutes, thereby essentially reversing the policy choice expressed by the voters themselves.

In 2008, the Florida Supreme Court struck down these limiting provisions, holding that Amendment 7 was self-executing. Undaunted, the hospitals asserted that “adverse medical incidents” do not include those in which the hospital exonerated itself from fault, that Amendment 7 violates the hospital's rights to due process or impaired their rights under the Contract Clause of the Florida constitution, and that Amendment 7 is preempted by a federal law called the Health Care Improvement Act.  Florida courts have rejected these arguments.

On Oct. 26, the Florida Supreme Court in Edwards v. Thomas again rebutted these efforts to evade Amendment 7 by refusing to allow a hospital to outsource its review of adverse medical incidents to an outside company and thereby shield such records as work product generated in anticipation of litigation. This important decision weighs between the constitutional right to know about these adverse medical incidents and the attorney work product doctrine. The court found the correct balance which clearly tips in favor of disclosure given that we are dealing with a state constitutional provision, which should trump any law other than federal.

The decision does leave open certain issues such as whether the attorney-client privilege can still be used to shield such information. But it has all but closed the door to the ability of hospitals to prevent Florida citizens from obtaining these records.​

Herman J. Russomanno is a founding partner at Russomanno & Borrello in Miami.