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Tarpon Springs Hospital Foundation Inc. v. White

Florida Court of Appeals, Second District

December 11, 2019

TARPON SPRINGS HOSPITAL FOUNDATION INC., d/b/a Florida Hospital North Pinellas, Petitioner,
v.
Donna L. WHITE, as Personal Representative of the Estate of her deceased husband, David L. White, Respondent.

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[Copyrighted Material Omitted]

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          Petition for Writ of Certiorari to the Circuit Court for Pinellas County; Keith Meyer, Judge.

         Thomas L. Schieffelin of Adams, Hall, Schieffelin, & Smith, P.A., Winter Park, for Petitioner.

         Ralph L. Gonzalez and C. Steven Yerrid of The Yerrid Law Firm, Tampa, for Respondent.

          OPINION

         KHOUZAM, Chief Judge.

         Donna White filed suit against Tarpon Springs Hospital Foundation, Inc. (Tarpon Springs), and Dr. Angelo Cappiello for medical malpractice that allegedly resulted in the death of her husband. During discovery, she asked the hospital to produce every record that "identifies each and every time Dr. Cappiello became board eligible by the American Board of Internal Medicine" prior to October 15, 2015. After a hearing on a motion to compel this discovery, the trial judge ordered Tarpon Springs to provide the requested documents, but only as far back as three years. Tarpon Springs now petitions this court for a writ of certiorari, arguing that the discovery order is overbroad and will require production of documents privileged under section 395.0191, Florida Statutes (2018). We agree with Tarpon Springs and hereby grant the certiorari petition to quash the order.

         An order requiring the production of documents privileged under section 395.0191 that do not relate to an adverse

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medical incident satisfies the "threshold showing of irreparable harm necessary to invoke this court’s certiorari jurisdiction." Bartow HMA, LLC v. Kirkland, 126 So.3d 1247, 1252 (Fla. 2d DCA 2013) (quoting Columbia Hosp. Corp. of S. Broward v. Fain, 16 So.3d 236, 239 (Fla. 4th DCA 2009)).

          Section 395.0191(8) prohibits the discovery of "investigations, proceedings, and records" of a hospital board "in any civil action against a provider of professional health services arising out of matters which are the subject of evaluation and review by such board." See also Baptist Hosp. of Miami, Inc. v. Garcia, 994 So.2d 390, 393 (Fla. 3d DCA 2008) (holding that a court order requiring a hospital to list all documents in its physicians’ credentialing files in contravention of section 395.0191(8) was a departure from the essential requirements of law). This privilege is intended "to provide that degree of confidentiality necessary for the full, frank medical peer evaluation which the legislature sought to encourage." Cruger v. Love, 599 So.2d 111, 113-14 (Fla. 1992) (quoting Holly v. Auld, 450 So.2d 217, 220 (1984)). This privilege extends not only to documents created by the board, but to "any document considered by the committee or board as part of its decision-making process." Id. at 114. However, documents "otherwise available from original sources are not to be construed as immune from discovery ... merely because they were presented during proceedings of such board." § 395.0191(8). In other words, a document that "a party secures from the original source is not privileged merely because it was presented during peer review committee or board proceedings." Cruger, 599 So.2d at 114 (citing Feldman v. Glucroft, 522 So.2d 798, 801 (Fla. 1988)); see also Columbia/JFK Med. Ctr. Ltd. P’ship v. Sanguonchitte, 920 So.2d 711, 712 (Fla. 4th DCA 2006) (same).

         Since the holding in Cruger, however, an exception to this statutory privilege has developed. The Florida Constitution was amended in 2004 to grant patients the right to access "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), Fla. Const. The section goes on to say:

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 ...

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