By: Walter Tache, Cristina Alonso and Jessica Zagier Wallace

On August 17, 2011, the Third District Court of Appeal released: Acevedo v. Doctors Hospital, Inc., No. 3D10-2257 (Fla. 3d DCA August 17, 2011) (not final until disposition of timely filed motion for rehearing), which addresses Article X, Section 25 of the Florida Constitution (“Amendment 7”), and the work product privilege.

In Acevedo, a medical malpractice case, the plaintiff petitioned for a writ of certiorari, seeking to quash a trial court's order permitting a defendant health care facility to redact all “opinions, comments, recommendations or findings, no matter by whom made” from incident reports, Code 15 reports, and other risk management records requested under Amendment 7. The plaintiffs also requested that the Third District quash the portion of the trial court’s order that protected from discovery an incident report and other risk management worksheets that related to an event that the trial court determined was an adverse medical incident.

The Third District granted the petition, finding certiorari jurisdiction both because the information sought went to the heart of plaintiffs’ case and no other documents could be substituted for them, and because the redaction of comments and opinions from the incident reports was an unwarranted interference with the plaintiffs’ rights under Amendment 7.

The Third District considered the difference between opinion and fact work product and held that the protection afforded to opinion work product under Florida Rule of Civil Procedure 1.280 did not apply to “the comments and findings of hospital personnel routinely contained in adverse medical incident reports.” As such, the Third District quashed the portion of the trial court’s order permitting this redaction. The Third District further quashed the trial court’s order to the extent that it protected risk management worksheets and incident reports related to events it identified as adverse medical incidents, and ordered production of all “adverse medical incident reports” responsive to the plaintiffs’ discovery requests. While the court does not define the term “adverse medical incident reports,” that the decision indicates that the records at issue were limited to incident reports, Code 15 reports, and other risk management worksheets that were related to adverse medical incidents.