                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                                 IN THE DISTRICT COURT OF APPEAL
                                                 OF FLORIDA
                                                 SECOND DISTRICT



BARTOW HMA, LLC d/b/a BARTOW        )
REGIONAL MEDICAL CENTER,            )
                                    )
           Petitioner,              )
                                    )
v.                                  )                   Case No. 2D14-3450
                                    )
AMBER EDWARDS and LARRY             )
THOMAS, M.D.,                       )
                                    )
           Respondents.             )
___________________________________ )

Opinion filed July 10, 2015.

Petition for Writ of Certiorari to the Circuit
Court for Polk County; Ellen S. Masters,
Judge.

Michael A. Petruccelli and Paul C. Buckley
of Fann & Petruccelli, P.A., Fort
Lauderdale, and Amy L. Dilday and Andrew
R. McCumber of McCumber, Daniels,
Buntz, Hartig & Puig, P.A., Tampa, for
Petitioner.

Kara Berard Rockenbach and Kristi
Bergemann Rothell of Methe &
Rockenbach, P.A., West Palm Beach, and
Karen E. Terry and Matthew K. Schwenke
of Searcy Denney Scarola Barnhart &
Shipley, P.A., West Palm Beach, for
Respondent Amber Edwards.

No appearance for Respondent Larry
Thomas, M.D.
SILBERMAN, Judge.

              Bartow HMA, LLC, ("the Hospital"), seeks certiorari review of a discovery

order entered in a medical negligence lawsuit filed against the Hospital and Larry

Thomas, M.D., by Amber Edwards. Findings 15, 16, and 20 of section E of the order

require the Hospital to produce reports relating to "attorney requested external peer

review" pursuant to article X, section 25, Florida Constitution ("Amendment 7"). We

conclude that the order departs from the essential requirements of the law because

these reports do not fall within the ambit of Amendment 7 and are privileged. We

therefore grant the petition.

I. Facts

              In her complaint, Edwards alleged that she was injured when Dr. Thomas

severed her common bile duct during gallbladder removal surgery. Edwards alleged

that the Hospital was liable for the injuries caused by Dr. Thomas and unnamed nurses

and hospital personnel pursuant to theories of agency, apparent agency, and vicarious

liability. Edwards also alleged that the Hospital was directly liable to her based on,

among other things, theories of negligent hiring and non-delegable duty.

              Edwards served the Hospital with a request to produce that included a

request for all documents created within the five years before Edwards' surgery relating

to the Hospital's investigation or review of Dr. Thomas's care and treatment of any

patient. Edwards also requested all documents pertaining to the Hospital's investigation

or review of her care and treatment. Edwards cited to Amendment 7 as authorization

for this requested discovery.




                                           -2-
              The Hospital filed a response in which it asserted that "Amendment 7 only

provides patients a right to access to records made or received in the course of

business by a health care facility or a health care provider relating to adverse medical

incidents." The Hospital claimed that some of the requested records did not fall within

these parameters and that many of the documents were protected from discovery by

applicable privileges. Edwards filed a motion to compel better responses. The court

entered an order overruling certain objections and sustaining others.

              The Hospital filed further responses which essentially reiterated the same

objections and attached privilege logs. In Privilege Log B at 15, 16, and 20, the Hospital

challenged specific reports "relating to attorney requested external peer review" and

asserted that they were privileged. Edwards responded by filing a motion for rule to

show cause or for an in camera inspection.

              The court conducted a hearing on the motion at which it clarified its prior

ruling on the Hospital's objections. The court explained that it had already determined

that the documents in the Hospital's privilege log were privileged. But it had also

concluded that Amendment 7 preempted the privileges so that any documents relating

to adverse medical incidents were discoverable. The court agreed to conduct an in

camera inspection to determine if any of the documents in the privilege logs did not fall

within the ambit of Amendment 7.

              After the in camera inspection, the court entered the order that is the

subject of the Hospital's certiorari petition. In the order, the court required the

production of all documents related to the Hospital's peer review of adverse medical

incidents involving Dr. Thomas including the external peer review reports listed in




                                             -3-
Privilege Log B at 15, 16, and 20. The Hospital provided Edwards the documents

relating to the internal peer review process but filed this petition for certiorari challenging

the portion of the order requiring production of the external peer review reports.

II. Analysis

               In order to be entitled to certiorari review, the Hospital must establish that

the circuit court's order (1) causes it material injury for which there is no adequate

remedy on direct appeal and (2) departs from the essential requirements of the law.

See Bartow HMA, LLC v. Kirkland, 126 So. 3d 1247, 1251-52 (Fla. 2d DCA 2013). The

first component is established when a petitioner is ordered to produce documents that

are statutorily privileged. See id. at 1252; Lakeland Reg'l Med. Ctr. v. Neely ex rel.

Neely, 8 So. 3d 1268, 1269 (Fla. 2d DCA 2009). The issue for our review is whether

the circuit court's order departed from the essential requirements of the law.

               The dispositive question here is whether the external peer review reports

fall within the ambit of Amendment 7. See Kirkland, 126 So. 3d at 1254. If the external

peer review reports do not fall within the ambit of Amendment 7, they are protected from

discovery because the circuit court has already determined that they are privileged. If

the external peer review reports do fall within the ambit of Amendment 7, it will be

necessary to determine whether the applicable privileges are preempted by Amendment

7. See id. As discussed below, we conclude that the requested reports are not within

the ambit of Amendment 7.

               A. History of Amendment 7

               Florida law contains statutory privileges that provide for the confidentiality

of health care facility or provider peer review as conducted by a medical review




                                             -4-
committee or governing board of licensed hospital facilities. See §§ 395.0191(8),

395.0193(8), 766.101(5), Fla. Stat. (2010); W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So.

3d 1, 9-10 (Fla. 2012). Those provisions protect "any 'document considered by the

committee or board as part of its decision-making process.' " W. Fla. Reg'l, 79 So. 3d at

10 (quoting Cruger v. Love, 599 So. 2d 111, 114 (Fla. 1992)).

              Amendment 7 was approved by Florida voters after a general election in

November 2004. Kirkland, 126 So. 3d at 1252. It preempts the statutory discovery

protections for the peer review process, id. at 1253, by providing patients a right of

"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." Art. X, § 25(a). The issue

of whether it preempts certain common law privileges is not settled. See Kirkland, 126

So. 3d at 1253.

              B. Application of Amendment 7

                     1. Made or Received in the Course of Business

              Among other things, the Hospital argues that the external peer review

reports do not fall within the ambit of Amendment 7 because they were not "made or

received in the course of business." The documents at issue are each entitled "Peer

Review Report." They were generated in response to letters sent by the Hospital's

counsel to the director of client services at a business called "M.D. Review." On behalf

of the Hospital, counsel requested

              that M.D. Review conduct an external peer review
              concerning the medical care and treatment rendered by one
              of its physicians [name and specialty], to [number] different
              patients at the facility. We are requesting this external peer
              review investigation to be done on an attorney client, work
              product and peer review privileged basis.



                                            -5-
Counsel included medical records from certain specified patients. The Hospital has

consistently maintained that counsel requested the reports at issue for purposes of

litigation.

              Each external peer review report was prepared by a physician, and each

report references a separate patient. Each report provides a "Case Overview" in which

the reviewing physician describes the patient's complaints and details the course of

diagnosis and treatment. The next section is "Findings of Fact" which is a chart noting

details regarding each test or treatment administered. Then there is a section entitled

"Discussion" in which the reviewing physician conducts an in-depth critique of the

subject physician's course of diagnosis and treatment. Each report finishes with a

"Conclusion" indicating whether the reviewing physician believes the standard of care

was met.

              To determine whether these external peer review reports fall within the

ambit of Amendment 7, we are guided by some general principles of statutory

construction. The polestar of our analysis is legislative intent. W. Fla. Reg'l, 79 So. 3d

at 8. And to discern intent, we must look to "the plain and obvious meaning of the

statute's text." Id. at 9. If that language is sufficiently clear and unambiguous to convey

an unequivocal meaning, then we will apply that meaning without considering any

further rules of statutory construction. Id.

              "Course of business" is not defined in Amendment 7, but it has a plain and

obvious meaning. Indeed, similar language has been discussed in cases involving

section 90.803(6)(a), Florida Statutes (2003), which sets forth a hearsay exception for

records "kept in the ordinary course of a regularly conducted business activity." Some



                                               -6-
records are kept in the course of a regularly conducted business activity if they are kept

pursuant to a statutorily mandated duty. See Yisrael v. State, 993 So. 2d 952, 958 (Fla.

2008). While Florida hospitals are statutorily required to establish internal risk

management programs to investigate and respond to adverse incidents,1 they are not

statutorily required to retain external experts to evaluate adverse medical incidents to

determine whether the standard of care was met. Here, the external peer review

reports were made for purposes of litigation rather than to fulfill a statutory duty.

              Other records may be kept in the course of business even in the absence

of a statutory duty. See, e.g., Bank of N.Y. v. Calloway, 157 So. 3d 1064, 1071 (Fla. 4th

DCA 2015) ("Businesses rely upon their records 'in the conduct of [their] daily affairs'

and 'customarily check [them] for correctness during the course of the business

activities.' " (quoting Charles W. Ehrhardt, Florida Evidence § 803.6 (2014 ed.))).

Records created by an expert retained for purposes of litigation are not kept in the

course of regularly conducted business activity. See Brown v. Int'l Paper Co., 710 So.

2d 666, 668 (Fla. 2d DCA 1998) (holding that a handwriting analyst's report created

during the investigation of an allegedly forged purchase requisition form was not made

in the course of business). Accordingly, the external peer review reports were not

"made or received in the course of business" under Amendment 7.

                       2. Adverse Medical Incident

               Unlike the phrase, "made or received in the course of business," the term

"adverse medical incident" is defined in Amendment 7.



              1
                  See §§ 395.0193, .0197, Fla. Stat. (2010).




                                             -7-
              The phrase "adverse medical incident" means medical
              negligence, intentional misconduct, and any other act,
              neglect, or default of a health care facility or health care
              provider that caused or could have caused injury to or death
              of a patient, including, but not limited to, those incidents that
              are required by state or federal law to be reported to any
              governmental agency or body, and incidents that are
              reported to or reviewed by any health care facility peer
              review, risk management, quality assurance, credentials, or
              similar committee, or any representative of any such
              committee.

Art. X, § 25(c)(3) (emphasis added).

              Edwards argues that the external peer review reports relate to adverse

medical incidents under this definition because they pertain to "incidents that are

reported to or reviewed by any health care facility peer review . . . or similar committee."

Edwards acknowledges that M.D. Review is not a "committee" but asserts that it

functions as the equivalent and notes that the reports are each entitled "Peer Review

Report." Edwards claims that the retention of M.D. Review by counsel is an attempt by

the Hospital to outsource the peer review process and cloak it with protection from

discovery under Amendment 7.

              We cannot agree that M.D. Review functions as the equivalent of a health

care facility peer review. M.D. Review does not perform the routine function of

reviewing incidents for the Hospital when medical negligence or other events occur as

specified in Amendment 7. Instead, it provides an expert opinion on the standard of

care on sporadic occasions when litigation is imminent. See Neely, 8 So. 3d at 1270

n.2 (discussing Amendment 7 and noting the distinction between incident reports

prepared in accordance with Florida Statutes and those "documents prepared or

produced at the specific request of the client's attorney for use in litigation"). While the




                                            -8-
documents at issue are each entitled "Peer Review Report," it is the substance of the

reports and their context that determines whether they are within the ambit of

Amendment 7. Although the reports address adverse medical incidents, the reports

contain expert opinions requested by counsel. The limited record before us does not

suggest that the reports were obtained as part of the Hospital's regular peer review

process.

              We are also not persuaded that the use of external peer review under

these circumstances is an attempt to circumvent the disclosure requirements of

Amendment 7. The Hospital has already satisfied those requirements by providing

access to numerous documents pertaining to internal adverse incident reporting and

peer review. Of course, our result may have been different if the Hospital had not

conducted an internal peer review of the incidents in question.

                     3. Conclusion on the Application of Amendment 7

              Thus, we conclude that the external peer review reports do not fall within

the ambit of Amendment 7 because they were not "made or received in the course of

business." Because the circuit court has already determined that the reports are

privileged, they are protected from discovery.

III. Preemption of Common Law Privileges

              In light of our conclusion that the reports do not fall within the ambit of

Amendment 7, it is not necessary to fully analyze Edwards' alternate argument that

Amendment 7 preempts the common law attorney-client and work-product privileges.

That said, the law on the issue as it pertains to the common-law work-product and

attorney-client privileges is still developing. Florida courts have determined that the




                                            -9-
privilege for fact work-product does not survive Amendment 7. See Kirkland, 126 So.

3d at 1253; Neely, 8 So. 3d at 1270; Acevedo v. Doctors Hosp., Inc., 68 So. 3d 949,

953 (Fla. 3d DCA 2011); Fla. Eye Clinic, P.A. v. Gmach, 14 So. 3d 1044, 1048 (Fla. 5th

DCA 2009). But courts have distinguished the privilege for opinion work-product and

ruled that it is not preempted by Amendment 7. See Kirkland, 126 So. 3d at 1253;

Acevedo, 68 So. 3d at 953; Gmach, 14 So. 3d at 1050. And while no appellate court

has ruled on the issue of whether Amendment 7 preempts the attorney-client privilege,

this court has noted that there has been a suggestion to that effect. See Kirkland, 126

So. 3d at 1253; Morton Plant Hosp. Ass'n, Inc. v. Shahbas ex rel. Shahbas, 960 So. 2d

820, 825 (Fla. 2d DCA 2007).

IV. Conclusion

              Because the external peer review reports do not fall within the ambit of

Amendment 7 and the circuit court has ruled that they are privileged, it was a departure

from the essential requirements of the law to order their production. Accordingly, we

grant the Hospital's petition for writ of certiorari and quash findings 15, 16, and 20 of

section E of the circuit court's order.

              Petition granted; order quashed in part.


KELLY and BLACK, JJ., Concur.




                                            - 10 -
