Before a Florida medical malpractice lawsuit proceeds to trial, the parties go through the pre-trial discovery process, in which each side requests information of the other side that they believe will be relevant in the case. While most relevant material is discoverable, historically some categories of evidence have not been discoverable because they fit within a privilege.
In 2004, Florida citizens amended their constitution, adding a “right to have 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.” This has come to be known as Amendment 7. Recently, the Florida Supreme Court issued a written opinion clarifying how far Amendment 7 reaches.
The plaintiff filed a medical malpractice lawsuit against the defendant doctors after her bile duct was severed during a routine medical procedure. Pursuant to Amendment 7, the plaintiff requested a number of her medical records relating to the medical procedure. The defendants claimed that the medical records were exempt from the rules of discovery, citing several privileges.
The court ordered production of the plaintiff’s records, and the defendants again refused, making the same arguments. The court again ordered the defendants to provide the requested information to the plaintiff, but instead the defendants asked a higher court to determine whether the evidence was protected by privilege or whether it was included in Amendment 7.
The intermediate court determined that the evidence was protected because the evidence was not “made or received in the course of business,” exempting it from Amendment 7. The court also found that the requested documents were covered by various common-law privileges. The plaintiff appealed to the Florida Supreme Court, arguing that Amendment 7 preempts the common-law privileges claimed by the defendants.
The Court’s Opinion
The court determined that Amendment 7 covered the requested documents and that the plaintiff did have the right to have them disclosed during discovery. The court primarily looked at the inclusive language of Amendment 7, finding that the intent of the amendment was to provide access to this very type of medical record. Thus, the court was comfortable stating that the amendment trumped most common-law privileges. However, the court noted that the attorney-client privilege was not implicated under these facts, and thus the court’s opinion did not technically rule on whether Amendment 7 preempted that privilege.
Have You Been a Victim of Medical Malpractice?
If you or a loved one has recently been a victim of what you believe to have been negligent medical care, you may be entitled to monetary compensation. Since the passing of Amendment 7, victims of Florida medical malpractice have far greater access to the evidence they need to prove their case. With this most recent opinion, even more documentation will be made available. The skilled Florida personal injury attorneys at the law firm of Cecere Santana have extensive experience handling a wide range of Florida medical malpractice cases, and we would be happy to speak with you about your case. Call 800-753-5529 to schedule a free consultation with an attorney at Cecere Santana today.
More Blog Posts:
Florida Car Accident Plaintiff’s Non-Compliance with Contractual Term Not a Basis for Dismissal Due to Defendant’s Failure to Object, Cecere Santana Injury Lawyers Blog, published October 25, 2017.
Is the Jury’s Verdict Final in a Florida Personal Injury Case?, Cecere Santana Injury Lawyers Blog, published November 9, 2017.