Amendment 7 has more hurdles than the track at the Olympics

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 37

SEPTEMBER 13, 2024

PEER REVIEW STATUTES PRIVILEGE PROTECT THE DISCLOSURE OF DOCUMENTS CONSIDERED IN CREDENTIALING PROCESS NOT RELATED TO AN ESTABLISHED “ADVERSE MEDICAL INCIDENT” – A PARTY CANNOT USE ARTICLE X, SECTION 25 TO OBTAIN OTHERWISE PRIVILEGED DISCOVERY OF THE ACTS UNDERLYING THE MEDICAL MALPRACTICE OR NEGLIGENT CREDENTIALING CAUSES OF ACTION WITHOUT ESTABLISHING AN INDEPENDENT ADVERSE MEDICAL INCIDENT FIRST

Regala v. McDonald, 49 Fla. L. Weekly D1836 (Fla. 6th DCA Sept. 6, 2024):

The trial court ordered a surgical center to produce documents contained in the doctor’s credentialing file in the underlying medical malpractice/negligent credentialing lawsuit. The order came after an in camera inspection and the trial court’s conclusion that the documents contained in the credentialing file were discoverable pursuant to Article X, Section 25 of the Florida Constitution (Amendment 7).

The court acknowledged that the credentialing committee’s file contained documents that it considered in its decision-making process and would largely be protected by Florida’s peer review statutes found in sections 395.0191(8), 395.0193(8), and 766.101(5).

The court then considered whether the allegation of negligent credentialing itself met Amendment 7’s definition of an “adverse medical incident.”

In analyzing the constitutional provision, the court noted that Amendment 7 creates a constitutional right to obtain records considered or created by a hospital board that may otherwise be protected by the peer review statutes, provided the records concern adverse medical incidents. General credentialing information unrelated to an adverse medical incident is not included in Amendment 7.

Under subsection (c)(3), an “adverse medical incident,” the court explained, the description of an act of a healthcare facility or provider is written in the past tense—stating that it is one that caused or could have caused a patient’s injury or death.

Thus, for the documents to fall within Amendment 7, the negligent act must be connected with a patient and have been the cause or “near cause” of that patient’s injury or death. The court then concluded that merely asserting a cause of action does not establish the existence of an adverse medical incident for purposes of invoking Amendment 7 and held that the documents otherwise protected by the peer review statutes do not become discoverable under Amendment 7 until the existence of an adverse medical incident has actually been established.

The court did certify a question of great public importance:

“DOES WEST FLORIDA REGIONAL MEDICAL CENTER, INC. V. SEE, 79 SO. 3D 1 (FLA. 2012) REQUIRE A HEALTHCARE FACILITY TO PRODUCE ALL DOCUMENTS CONTAINED IN ITS CREDENTIALING FILE AND/OR CONSIDERED BY THE CREDENTIALING COMMITTEE WHEN SOUGHT BY A PATIENT ALLEGING CAUSES OF ACTION FOR NEGLIGENT CREDENTIALING AND MEDICAL MALPRACTICE?”

TRIAL COURT ERRED IN GRANTING DIRECTED VERDICT IN FAVOR OF DEFENDANT ON ISSUE OF PLAINTIFF’S PAST MEDICAL EXPENSES

Roman v. SOS, 49 Fla. L. Weekly D1852 (Fla. 2nd DCA Sept. 6, 2024):

In this automobile accident case, the defendant hit the plaintiff’s work truck as she pulled out of her driveway. The plaintiff alleged in his complaint that he had suffered lower back injuries that required surgery.

The record demonstrated that the plaintiff had an extensive prior medical history of lower back injuries and medical treatment, including from a past accident. At trial, the plaintiff presented the testimony of two doctors, along with his own testimony about the accident and resulting injuries.

The plaintiff testified that after sustaining neck and back pain in the accident, he sought treatment with a chiropractor. While that treatment alleviated his neck pain, his lower back pain continued

 and worsened to include radiating pain down his right leg. He was ultimately referred to a surgeon.

During his direct testimony, the plaintiff confirmed that the pain he had suffered from the accident was worse than what he had experienced in his first accident, and it was the most excruciating pain he had ever felt. Counsel asked the plaintiff if he was still treating with the surgeon at the time of trial, to which the plaintiff answered  “Yes.”

At that point, counsel presented to the plaintiff a summary of his past medical bills for treatment from his chiropractor and the surgeon, as well as his MRI imaging and diagnostic services. The plaintiff agreed he had incurred the bills for medical services he had received in the years since the accident and acknowledged he was responsible for paying those bills. The bill summary was admitted into evidence without objection.

On cross, the plaintiff explained that his injuries related to this accident and distinguished how the pain he felt from this accident was different than the prior accident.

After the plaintiff rested, defense counsel moved for a directed verdict on the past medical expenses, arguing that the plaintiff had failed to prove that those bills were reasonable and related. The defendant asserted that only the plaintiff testified about his care and treatment being related, and neither he, nor any other physician said anything about his medical bills being reasonable.

The plaintiff’s counsel responded that the surgeon established medical necessity and a causal relationship of the treatment, and that the plaintiff testified that all of those bills were his for which he was responsible.

The trial court agreed with the defendant concluding that the plaintiff had failed to establish the reasonableness of the amount charged for the medical treatment. The trial court also denied the plaintiff’s motion to reopen his case to offer testimony about the reasonableness of the past medical expenses. At the end of the trial, the jury found the plaintiff to be 75% responsible and the defendant 25%.

Due to the previously entered directed verdict, the issue of past medical expenses was excluded from the jury’s verdict. After finding that the plaintiff had not sustained a permanent injury, the jury awarded no future medical expenses. The trial court denied the plaintiff’s motion for a new trial, or in the alternative, judgment notwithstanding the verdict.

The plaintiff in a personal injury suit has the burden to prove the reasonableness and necessity of medical expenses.

The question becomes what is necessary to establish the reasonableness of the medical charges. The plaintiff’s evidence included the summary of his past medical bills which was entered into evidence without objection and verified by his own testimony and that of his two doctors.

In Florida, the amount of the bill is not sufficient proof of reasonableness without something more. The parties agree that the Albertsons v. Brady case requires that to establish a prima facie negligence claim with past medical expenses, a plaintiff must establish that he or she incurred medical expenses, that the occurrence of these medical expenses was necessary, and that the particular medical expenses claimed were reasonably related to injuries related to the subject accident. The defendant argued that the plaintiff had not fully established the reasonableness of the expenses because he failed to provide specific evidence of the reasonableness of the dollar amounts charged by the various providers.

The appellate court concluded that the testimony from the physicians along with the medical bill summary established that the plaintiff incurred damages that he was responsible to pay, and that the expenses were for necessary treatment for injuries related to the accident. The standard jury instructions on negligence and damages also support this conclusion. FSJI 501.2(b) directs the jury to consider the reasonable value or expense of hospitalization or medical care, and treatment necessarily obtained by the plaintiff in the past or to be obtained in the future.

When determining whether the evidence would support a verdict for the plaintiff on his negligence claim, the proper considerations for the trial court were whether the plaintiff had established that the defendant had a lawful duty, that she breached the duty, that he suffered a loss, injury, or damage, and that his loss, injury, or damage was reasonably related to the incident. If the evidence supports that claim, a directed verdict is not proper. Additionally, the defendant was free to cross-examine the plaintiff’s witnesses and present her own evidence regarding the necessity and reasonableness of the care.

This case will probably have very little value in light of HB 837 and the enactment of section 768.0427, Florida Statutes, but it is fun for now.

ORDER DENYING DEFENDANT’S CLAIM OF IMMUNITY UNDER SECTION 324.021(9)(C)(3) IS NOT AN APPEALABLE NON-FINAL ORDER—SAID IMMUNITY NOT IDENTIFIED IN RULE 9.130

DRJ Atlantic, LLC v. Babaadi, 49 Fla. L. Weekly D1848 (Fla. 5th DCA Sept. 5, 2024):

The defendant Hyundai dealership appealed the trial court’s denial of its motion for summary judgment which asserted immunity from liability under section 324.021(9)(c)3. The dealer had provided a temporary loaner vehicle to its customer while her car was being repaired. The customer was then involved in a car accident with the plaintiff.

The plaintiff sought damages from the dealership under Florida’s common law dangerous instrumentality doctrine, claiming that the dealer was vicariously liable because it owned the loaner vehicle and voluntarily entrusted it to the driver who negligently harmed the plaintiff.

The dealership moved for summary judgment, claiming it was statutorily immune from liability pursuant to the statute. The trial court denied the motion and the defendant appealed.

Without considering the merits of the arguments, the appellate court rejected the dealership’s argument that the order denying summary judgment based on this immunity was appealable. The dealership’s claim of statutory immunity is not a listed “non-final appeal” in rule 9.130, and while the rule permits interlocutory review of some orders involving immunity, the statutory immunity afforded to car dealerships under the identified statute is not identified by the rule. Accordingly, the court dismissed the defendant’s appeal.