TARPON SPRINGS HOSPITAL FOUNDATION INC., d/b/a FLORIDA HOSPITAL NORTH PINELLAS, Petitioner,
DONNA L. WHITE, as Personal Representative of the Estate of her deceased husband, David L. Whit, Respondent.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Petition for Writ of Certiorari to the Circuit Court for
Pinellas County; Keith Meyer, Judge.
L. Schieffelin of Adams, Hall, Schieffelin, & Smith,
P.A., Winter Park, for Petitioner.
L. Gonzalez and C. Steven Yerrid of The Yerrid Law Firm,
Tampa, for Respondent.
KHOUZAM, CHIEF JUDGE
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.
order requiring the production of documents privileged under
section 395.0191 that do not relate to an adverse 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)).
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).
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 management, quality assurance, credentials, or
similar committee, or any representative of any such
§ 25(c)(3), Fla. Const. Known as Amendment 7, this
amendment partially "trumps the application of the
statutory discovery protections set forth in section
395.0191." Bartow HMA, LLC v. Kirkland, 171
So.3d 783, 785 (Fla. 2d DCA 2015) (quoting Kirkland,
126 So.3d at 1253). More specifically, Amendment 7 creates a
constitutional right to access records considered by a
hospital board that would otherwise be protected from
discovery by section 395.0191, provided that those records
concern adverse medical incidents. However, the amendment
does not extend entitlement to documents that contain
"general credentialing information unrelated to an
adverse medical incident." Id.; see also
Morton Plant Hosp. Ass'n, Inc. v. Shahbas ex rel.
Shahbas, 960 So.2d 820, 827 (Fla. 2d DCA 2007) (holding
that a discovery request to a hospital under Amendment 7 for
all documents relating to the credentialing of one of its
physicians was overbroad because the request included
documents unrelated to "particular adverse medical
incidents"); W. Florida Reg'l Med. Ctr., Inc. v.
See, 18 So.3d 676, 690 (Fla. 1st DCA 2009) (holding that
the trial court departed from the essential requirements of
law by ordering a hospital to produce documents relating to
two physicians' training, where such documents did not
relate to an adverse medical incident within the meaning of
case, Tarpon Springs properly invokes our certiorari
jurisdiction by alleging that the trial court ordered
disclosure of documents privileged under section 395.0191(8),
an order that constitutes irreparable harm. See
Kirkland, 126 So.3d at 1252. It is also clear that the
trial court departed from the essential requirements of law.
Its order requiring Tarpon Springs to produce "each and
every record that identifies each and every time Dr.
Cappiello became Board Eligible" is overbroad because it
requires disclosure of privileged documents considered by the
hospital board in its hiring and credentialing of Dr.
White argues that the request is permissible because it falls
within the constitutional exception of Amendment 7 for
documents relating to medical incidents. She claims that
negligence by Tarpon Springs in its credentialing process led
to Dr. Cappiello being allowed to treat Mr. White, resulting
in the "medical incident" that lead to his death.
But this argument was rejected in See, 18 So.3d at
690. In that case, a woman suffered liver damage stemming
from a surgical procedure at a hospital. Id. at 681.
She sued the hospital for, among other things, negligently
credentialing the doctors who operated on her. Id.
During discovery, she requested hospital files relating to
the doctors' surgical training, and the trial court
denied the hospital's motion for protective order as to
those documents. Id. at 681-82. However, the First
District granted the hospital's certiorari petition on
this issue, holding that the doctors' training records
did not relate to an adverse medical incident within the
meaning of Amendment 7. Id. at 690. Rather, a
document relates to an "adverse medical incident"
when it relates to a "specific incident involving a
specific patient that caused or could have caused injury to
or the death of that patient." Id. Similarly,
because "there is no established adverse medical
incident to which the documents of [Dr. Cappiello's]
training relate, the trial court departed from the essential
requirements of the law in ordering the production of those
documents." Id. See also Shahbas ex rel.
Shahbas, 960 So.2d at 827 ("Because [appellees] are
entitled under Amendment 7 only to those documents which
contain information about an adverse medical incident, the
trial court departed from the essential requirements of law
in ordering a blanket disclosure of privileged documents on
the basis of Amendment 7.").
White also argues that the documents she seeks are not
privileged because they originated from sources outside the
hospital board. She argues that she can acquire these
documents from those sources, and that no irreparable harm
has occurred that would warrant a writ of certiorari. We
disagree. This argument is a derivative of the position
rejected in Cruger. Since "[v]irtually all of
the information considered during the peer review process
originates from outside sources," Mrs. White's
interpretation "would effectively eliminate the