In the recent past, doctors and other medical providers in Florida were heavily protected from negligence actions, which included limitations on certain documents which were “discoverable” and on noneconomic damages (pain and suffering, disfigurement, permanent disability, etc.). This often limited injured patients in not only proving their cases and the amounts they could recover, but also in finding a lawyer to take their case.

However, the tides are beginning to turn in favor of patients. The shift began this past summer when the Florida Supreme Court in North Broward Hospital District v. Kaitlin held that noneconomic damage caps were unconstitutional.

In addition, the shifting continued Oct. 26 when the Florida Supreme Court in Edwards v. Thomas ruled in support of a broad interpretation of Amendment 7 discovery. While the Kaitlin opinion received national attention, the court's opinion in Edwards flew under the radar of most. However, this opinion should not be overlooked as one first needs the right evidence to establish liability before noneconomic damages can be awarded, and Edwards may provide just that.

In short, Amendment 7 of the Florida Constitution grants patients the right to access all medically adverse incident reports of the health care providers or health care facilities that provided them treatment. The purpose behind Amendment 7 enactment was to grant patients the right to access a medical provider's history of acts, neglects, or defaults that may be important to the patient.

More specifically, Amendment 7 states in part: “In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.”

In Edwards, the plaintiff-patient requested a number of records relating to adverse medical incidents that occurred at the defendant-hospital's facility. More specifically, the plaintiff requested external peer review reports which contain performance reviews and assessments of physicians by their peers. The defendant objected arguing that such reports, which are required by law, were not considered adverse medical incidents, were not made in the course of business, and were protected by work-product and attorney-client privilege. However, the Florida Supreme Court disagreed holding that external peer review reports are discoverable. The court noted that “the language in Amendment 7 contains no limitation on the types of adverse medical incident reports that are now discoverable” and that “there is also no qualifying provision in Amendment 7 that limits the scope of discoverable records to those previously barred.” In the end, the court held, “Amendment 7 was aimed at eliminating all discovery restrictions on any records … relating to any adverse medical incident.”

Accordingly, the Florida Supreme Court has now made it clear that medical providers can no longer hide this crucial evidence from patients and their attorneys. Edwards marks another win for patients in the medical malpractice field and should be added to every lawyer's discovery handbook.

Marcus Susen is a partner with Koch Parafinczuk Wolf Susen in Fort Lauderdale. Contact him at [email protected].