NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

BARTOW HMA, LLC d/b/a BARTOW )

REGIONAL MEDICAL CENTER, )

)

Petitioner, )

)

v. ) Case No. 2D14-3450

)

AMBER EDWARDS and LARRY )

THOMAS, M.D., )

)

Respondents. )

___________________________________)

Opinion filed July 10, 2015.

Petition for Writ of Certiorari to the Circuit 

Court for Polk County; Ellen S. Masters, 

Judge.

Michael A. Petruccelli and Paul C. Buckley

of Fann & Petruccelli, P.A., Fort 

Lauderdale, and Amy L. Dilday and Andrew 

R. McCumber of McCumber, Daniels, 

Buntz, Hartig & Puig, P.A., Tampa, for 

Petitioner.

Kara Berard Rockenbach and Kristi

Bergemann Rothell of Methe & 

Rockenbach, P.A., West Palm Beach, and 

Karen E. Terry and Matthew K. Schwenke 

of Searcy Denney Scarola Barnhart & 

Shipley, P.A., West Palm Beach, for 

Respondent Amber Edwards.

No appearance for Respondent Larry 

Thomas, M.D. 
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SILBERMAN, Judge.

Bartow HMA, LLC, ("the Hospital"), seeks certiorari review of a discovery 

order entered in a medical negligence lawsuit filed against the Hospital and Larry 

Thomas, M.D., by Amber Edwards. Findings 15, 16, and 20 of section E of the order 

require the Hospital to produce reports relating to "attorney requested external peer 

review" pursuant to article X, section 25, Florida Constitution ("Amendment 7"). We 

conclude that the order departs from the essential requirements of the law because

these reports do not fall within the ambit of Amendment 7 and are privileged. We 

therefore grant the petition. 

I. Facts

In her complaint, Edwards alleged that she was injured when Dr. Thomas 

severed her common bile duct during gallbladder removal surgery. Edwards alleged 

that the Hospital was liable for the injuries caused by Dr. Thomas and unnamed nurses 

and hospital personnel pursuant to theories of agency, apparent agency, and vicarious 

liability. Edwards also alleged that the Hospital was directly liable to her based on, 

among other things, theories of negligent hiring and non-delegable duty. 

Edwards served the Hospital with a request to produce that included a 

request for all documents created within the five years before Edwards' surgery relating

to the Hospital's investigation or review of Dr. Thomas's care and treatment of any 

patient. Edwards also requested all documents pertaining to the Hospital's investigation 

or review of her care and treatment. Edwards cited to Amendment 7 as authorization 

for this requested discovery.
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The Hospital filed a response in which it asserted that "Amendment 7 only 

provides patients a right to access to records made or received in the course of 

business by a health care facility or a health care provider relating to adverse medical 

incidents." The Hospital claimed that some of the requested records did not fall within 

these parameters and that many of the documents were protected from discovery by 

applicable privileges. Edwards filed a motion to compel better responses. The court 

entered an order overruling certain objections and sustaining others.

 The Hospital filed further responses which essentially reiterated the same 

objections and attached privilege logs. In Privilege Log B at 15, 16, and 20, the Hospital 

challenged specific reports "relating to attorney requested external peer review" and 

asserted that they were privileged. Edwards responded by filing a motion for rule to 

show cause or for an in camera inspection.

The court conducted a hearing on the motion at which it clarified its prior 

ruling on the Hospital's objections. The court explained that it had already determined 

that the documents in the Hospital's privilege log were privileged. But it had also

concluded that Amendment 7 preempted the privileges so that any documents relating 

to adverse medical incidents were discoverable. The court agreed to conduct an in 

camera inspection to determine if any of the documents in the privilege logs did not fall 

within the ambit of Amendment 7.

After the in camera inspection, the court entered the order that is the 

subject of the Hospital's certiorari petition. In the order, the court required the 

production of all documents related to the Hospital's peer review of adverse medical 

incidents involving Dr. Thomas including the external peer review reports listed in 
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Privilege Log B at 15, 16, and 20. The Hospital provided Edwards the documents 

relating to the internal peer review process but filed this petition for certiorari challenging 

the portion of the order requiring production of the external peer review reports.

II. Analysis

In order to be entitled to certiorari review, the Hospital must establish that 

the circuit court's order (1) causes it material injury for which there is no adequate 

remedy on direct appeal and (2) departs from the essential requirements of the law. 

See Bartow HMA, LLC v. Kirkland, 126 So. 3d 1247, 1251-52 (Fla. 2d DCA 2013). The 

first component is established when a petitioner is ordered to produce documents that 

are statutorily privileged. See id. at 1252; Lakeland Reg'l Med. Ctr. v. Neely ex rel. 

Neely, 8 So. 3d 1268, 1269 (Fla. 2d DCA 2009). The issue for our review is whether 

the circuit court's order departed from the essential requirements of the law. 

The dispositive question here is whether the external peer review reports 

fall within the ambit of Amendment 7. See Kirkland, 126 So. 3d at 1254. If the external 

peer review reports do not fall within the ambit of Amendment 7, they are protected from 

discovery because the circuit court has already determined that they are privileged. If 

the external peer review reports do fall within the ambit of Amendment 7, it will be 

necessary to determine whether the applicable privileges are preempted by Amendment 

7. See id. As discussed below, we conclude that the requested reports are not within 

the ambit of Amendment 7. 

A. History of Amendment 7 

Florida law contains statutory privileges that provide for the confidentiality 

of health care facility or provider peer review as conducted by a medical review 
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committee or governing board of licensed hospital facilities. See §§ 395.0191(8),

395.0193(8), 766.101(5), Fla. Stat. (2010); W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So. 

3d 1, 9-10 (Fla. 2012). Those provisions protect "any 'document considered by the 

committee or board as part of its decision-making process.' " W. Fla. Reg'l, 79 So. 3d at 

10 (quoting Cruger v. Love, 599 So. 2d 111, 114 (Fla. 1992)). 

Amendment 7 was approved by Florida voters after a general election in 

November 2004. Kirkland, 126 So. 3d at 1252. It preempts the statutory discovery 

protections for the peer review process, id. at 1253, by providing patients a right of 

"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." Art. X, § 25(a). The issue 

of whether it preempts certain common law privileges is not settled. See Kirkland, 126 

So. 3d at 1253.

B. Application of Amendment 7

1. Made or Received in the Course of Business

Among other things, the Hospital argues that the external peer review 

reports do not fall within the ambit of Amendment 7 because they were not "made or 

received in the course of business." The documents at issue are each entitled "Peer 

Review Report." They were generated in response to letters sent by the Hospital's 

counsel to the director of client services at a business called "M.D. Review." On behalf 

of the Hospital, counsel requested

that M.D. Review conduct an external peer review 

concerning the medical care and treatment rendered by one 

of its physicians [name and specialty], to [number] different 

patients at the facility. We are requesting this external peer 

review investigation to be done on an attorney client, work 

product and peer review privileged basis. 
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Counsel included medical records from certain specified patients. The Hospital has 

consistently maintained that counsel requested the reports at issue for purposes of 

litigation. 

Each external peer review report was prepared by a physician, and each 

report references a separate patient. Each report provides a "Case Overview" in which 

the reviewing physician describes the patient's complaints and details the course of 

diagnosis and treatment. The next section is "Findings of Fact" which is a chart noting 

details regarding each test or treatment administered. Then there is a section entitled 

"Discussion" in which the reviewing physician conducts an in-depth critique of the 

subject physician's course of diagnosis and treatment. Each report finishes with a 

"Conclusion" indicating whether the reviewing physician believes the standard of care 

was met.

To determine whether these external peer review reports fall within the 

ambit of Amendment 7, we are guided by some general principles of statutory 

construction. The polestar of our analysis is legislative intent. W. Fla. Reg'l, 79 So. 3d 

at 8. And to discern intent, we must look to "the plain and obvious meaning of the 

statute's text." Id. at 9. If that language is sufficiently clear and unambiguous to convey 

an unequivocal meaning, then we will apply that meaning without considering any 

further rules of statutory construction. Id. 

"Course of business" is not defined in Amendment 7, but it has a plain and 

obvious meaning. Indeed, similar language has been discussed in cases involving 

section 90.803(6)(a), Florida Statutes (2003), which sets forth a hearsay exception for 

records "kept in the ordinary course of a regularly conducted business activity." Some 
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records are kept in the course of a regularly conducted business activity if they are kept 

pursuant to a statutorily mandated duty. See Yisrael v. State, 993 So. 2d 952, 958 (Fla. 

2008). While Florida hospitals are statutorily required to establish internal risk 

management programs to investigate and respond to adverse incidents,

1

they are not

statutorily required to retain external experts to evaluate adverse medical incidents to 

determine whether the standard of care was met. Here, the external peer review 

reports were made for purposes of litigation rather than to fulfill a statutory duty. 

Other records may be kept in the course of business even in the absence 

of a statutory duty. See, e.g., Bank of N.Y. v. Calloway, 157 So. 3d 1064, 1071 (Fla. 4th 

DCA 2015) ("Businesses rely upon their records 'in the conduct of [their] daily affairs' 

and 'customarily check [them] for correctness during the course of the business 

activities.' " (quoting Charles W. Ehrhardt, Florida Evidence § 803.6 (2014 ed.))). 

Records created by an expert retained for purposes of litigation are not kept in the 

course of regularly conducted business activity. See Brown v. Int'l Paper Co., 710 So. 

2d 666, 668 (Fla. 2d DCA 1998) (holding that a handwriting analyst's report created 

during the investigation of an allegedly forged purchase requisition form was not made 

in the course of business). Accordingly, the external peer review reports were not 

"made or received in the course of business" under Amendment 7. 

2. Adverse Medical Incident

Unlike the phrase, "made or received in the course of business," the term 

"adverse medical incident" is defined in Amendment 7. 

 

1See §§ 395.0193, .0197, Fla. Stat. (2010). 
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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 

committee.

Art. X, § 25(c)(3) (emphasis added). 

Edwards argues that the external peer review reports relate to adverse 

medical incidents under this definition because they pertain to "incidents that are 

reported to or reviewed by any health care facility peer review . . . or similar committee." 

Edwards acknowledges that M.D. Review is not a "committee" but asserts that it 

functions as the equivalent and notes that the reports are each entitled "Peer Review 

Report." Edwards claims that the retention of M.D. Review by counsel is an attempt by 

the Hospital to outsource the peer review process and cloak it with protection from 

discovery under Amendment 7.

We cannot agree that M.D. Review functions as the equivalent of a health 

care facility peer review. M.D. Review does not perform the routine function of 

reviewing incidents for the Hospital when medical negligence or other events occur as 

specified in Amendment 7. Instead, it provides an expert opinion on the standard of 

care on sporadic occasions when litigation is imminent. See Neely, 8 So. 3d at 1270 

n.2 (discussing Amendment 7 and noting the distinction between incident reports 

prepared in accordance with Florida Statutes and those "documents prepared or 

produced at the specific request of the client's attorney for use in litigation"). While the 
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documents at issue are each entitled "Peer Review Report," it is the substance of the 

reports and their context that determines whether they are within the ambit of

Amendment 7. Although the reports address adverse medical incidents, the reports 

contain expert opinions requested by counsel. The limited record before us does not 

suggest that the reports were obtained as part of the Hospital's regular peer review 

process.

We are also not persuaded that the use of external peer review under 

these circumstances is an attempt to circumvent the disclosure requirements of 

Amendment 7. The Hospital has already satisfied those requirements by providing 

access to numerous documents pertaining to internal adverse incident reporting and 

peer review. Of course, our result may have been different if the Hospital had not 

conducted an internal peer review of the incidents in question.

3. Conclusion on the Application of Amendment 7

Thus, we conclude that the external peer review reports do not fall within 

the ambit of Amendment 7 because they were not "made or received in the course of 

business." Because the circuit court has already determined that the reports are 

privileged, they are protected from discovery. 

III. Preemption of Common Law Privileges

In light of our conclusion that the reports do not fall within the ambit of 

Amendment 7, it is not necessary to fully analyze Edwards' alternate argument that

Amendment 7 preempts the common law attorney-client and work-product privileges. 

That said, the law on the issue as it pertains to the common-law work-product and 

attorney-client privileges is still developing. Florida courts have determined that the 
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privilege for fact work-product does not survive Amendment 7. See Kirkland, 126 So. 

3d at 1253; Neely, 8 So. 3d at 1270; Acevedo v. Doctors Hosp., Inc., 68 So. 3d 949, 

953 (Fla. 3d DCA 2011); Fla. Eye Clinic, P.A. v. Gmach, 14 So. 3d 1044, 1048 (Fla. 5th 

DCA 2009). But courts have distinguished the privilege for opinion work-product and 

ruled that it is not preempted by Amendment 7. See Kirkland, 126 So. 3d at 1253;

Acevedo, 68 So. 3d at 953; Gmach, 14 So. 3d at 1050. And while no appellate court 

has ruled on the issue of whether Amendment 7 preempts the attorney-client privilege, 

this court has noted that there has been a suggestion to that effect. See Kirkland, 126 

So. 3d at 1253; Morton Plant Hosp. Ass'n, Inc. v. Shahbas ex rel. Shahbas, 960 So. 2d

820, 825 (Fla. 2d DCA 2007). 

IV. Conclusion

Because the external peer review reports do not fall within the ambit of 

Amendment 7 and the circuit court has ruled that they are privileged, it was a departure 

from the essential requirements of the law to order their production. Accordingly, we 

grant the Hospital's petition for writ of certiorari and quash findings 15, 16, and 20 of 

section E of the circuit court's order. 

Petition granted; order quashed in part.

KELLY and BLACK, JJ., Concur.