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MedPulse: Do Plaintiffs Have a Right to Get Adverse-Incident Reports?

By: Cohen, Placitella & Roth @ Mar 21, 2018

Florida lawmakers are currently constructing an initiative concerning medical malpractice claims, and, if passed, Florida residents will have an opportunity to weigh in on an issue that could have serious implications for the future of medical malpractice suits. According to a January 12, 2018 article appearing in News4Jax, the measure will seek to limit current law regarding accessibility of adverse incident reports. An adverse incident is an event that causes or has the potential to lead to unexpected, unwarranted effects on the safety of patients, healthcare providers, and other individuals. Because of the major impact the proposal may have on medical malpractice claims, it is important to review current law and recent cases on the matter.

Current Law Under Amendment 7

Existing Florida medical malpractice law is based on Amendment 7 to the Florida constitution, which gives potential medical malpractice plaintiffs almost completely open access to adverse incident reports. These documents are important for plaintiffs in preparing for litigation, but also for defendants, i.e., the physicians, hospitals, clinics, and other healthcare providers seeking to defend their own interests.

Opponents of Amendment 7’s current language argue that the legal system has been flooded due to the law, which allows litigants to obtain information that was never intended. Critics also contend that allowing open access raises issues regarding attorney-client privilege and that these documents should not be subject to discovery in medical malpractice lawsuits.

Two Recent Florida Supreme Court Cases

Since October, the state’s high court has addressed Amendment 7 questions in two cases. In one, the court overturned an appeals court decision that would have allowed a hospital to decline to turn over adverse incident reports on the grounds of attorney-client privilege. The justices found that such a situation would allow healthcare providers to evade discovery entirely, which runs contrary to Florida law.

In a January 2018 case, the Florida Supreme Court also rejected a hospital’s claim regarding Amendment 7. The defendant argued that a federal statute allowed it to refrain from turning over adverse incident reports, thereby trumping state law. The U.S. Supreme Court declined to take the case to clarify.

Proposed Changes and Impacts on Future Medical Malpractice Claims

These two cases and others are the impetus behind the move to narrow the language of Amendment 7. The initiative focuses on two goals:

  1. Patient access to adverse incident information should not serve as an opportunity to undermine attorney-client communications. Certain details, especially those discussed in preparation for litigation, should be shielded from discovery requests.
  2. Adverse incident report data that is related to federal safety laws should also be protected from the discovery process in a medical malpractice action based upon state law.

Lawmakers who propose these changes to Amendment 7 have not yet released the text of the measure they intended to bring to the ballot box for Florida voters.

Victims Can Seek Compensation for Medical Malpractice Injuries

For more information on medical malpractice actions and your rights to compensation due to the negligence of a healthcare provider, please contact the offices of Cohen, Placitella & Roth to schedule a free consultation. Our medical malpractice attorneys can have assisted many victims of medical errors, and we can help you get the compensation you deserve.

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