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. White, Respondent.
[Copyrighted Material Omitted]
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.
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 courts 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. Pship 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 ...