By Walter Taché, Cristina Alonso and Christine Davis Graves

On July 20, 2010, the First District Court of Appeal issued a writ of certiorari in Baldwin v. Shands Teaching Hospital and Clinics, Inc., No. 1D10-127, 2010 WL 2813577 (Fla. 1st DCA July 20, 2010), setting forth new rules applicable to the determination of what type of record constitutes an "adverse" medical incident under article X, section 25 of the Florida Constitution (Amendment 7). In Baldwin, the trial court denied the plaintiffs’ motion to compel a non-party health care provider to produce all adverse medical incidents, including a risk management incident report and peer review forms. The defendant health care provider claimed the documents requested were not discoverable because the care provided to the plaintiff met the standard of care and did not involve an "adverse medical incident" as required by Amendment 7.

The plaintiff sought review via petition for writ of certiorari in the First District. The First District held: (1) although certiorari is generally not appropriate for orders denying discovery, the court had jurisdiction because the denial of the constitutional right to records of adverse medical incidents under Amendment 7 constituted a material and irreparable injury; and (2) a health care provider is not the final arbiter of whether a medical incident is "adverse" for purposes of complying with Amendment 7 -- that is ultimately the court’s decision upon consideration of the nature of records requested. The court then found that the records requested by plaintiffs were adverse medical incidents and ordered the trial court to order production of them.