Verdicts

Florida Court Confirms Plaintiff's Right to Access Past Adverse Event Records

Florida's Circuit Court for the Seventeenth Judicial Circuit, Broward County, has held that, in a case in which a plaintiff sought discovery of a hospital's records of patient falls over a period of five years, the trial court's order denying the hospital's objections to the discovery requests did not depart from the essential requirements of Florida's constitutional law permitting such discovery, and that law is not contrary to federal statutory law or the U.S. Constitution. Columbia Hosp. Corp. of South Broward v. Fain, — So.3d —-, 2009 WL 2516917 (Fla.App. 4 Dist., 8/19/09).

Decedent William Fain fell out of his bed and died of his injuries while an inpatient at Columbia Hospital Corporation of South Broward (Columbia), d/b/a Westside Regional Medical Center, in Florida. His estate sued Columbia for medical negligence. In discovery, and pursuant to Amendment 7 of Florida's constitution, the estate requested incident reports concerning the decedent's fall. (Article X, Section 25 of the Florida Constitution, enacted as “Amendment 7,” concerns a patient's right to discover records related to adverse medical incidents.) The estate also asked for all adverse medical incident reports filed in the previous five years relating to falls of other patients who were under “fall precautions.” Columbia objected to the requests on a number of grounds, including that the tenets of Amendment 7 did not comport with federal statutory law and with the U.S. Constitution. The trial court entered an order compelling production.

Columbia sought to quash the trial court's order arguing, inter alia, that the trial court failed to consider or rule on its argument that Amendment 7 violates the Supremacy Clause of the U.S. Constitution and is preempted by federal legislation. Columbia's primary argument was that Amendment 7 was impliedly preempted by the Health Care Quality Improvement Act of 1986 (HCQIA) because the abolition of peer review discovery protections is contrary to the Act's intent to foster ” effective peer review.” 42 U.S.C. ' 11101, et seq. (2008). The court here found, however, that nothing in the HCQIA requires the states to provide confidentiality for peer review materials, because an “effective peer review” does not necessarily require confidentiality. Instead, HCQIA accomplishes its purpose of encouraging effective professional peer review through its immunization of peer review bodies, and those providing information in such proceedings, from damages in a civil suit. 42 U.S.C. ' 11111. Finding that the trial court's order denying Columbia's objections to the discovery requests for Amendment 7 material did not depart from the essential requirements of law, the petition to quash the trial court's order was denied.

Strict Adherence to Service Method Constraints Not Required

The Court of Appeals of Texas, Texarkana, has held that a trial court improperly dismissed a medical malpractice claim for failure to properly serve the defense with the statutorily required health care expert reports and curricula vitae (CVs), because although the service was not accomplished in the manner set forth by statute, the defense did in fact receive the documents within the required time, and no harm resulted from the plaintiff's using the unauthorized service method. Goforth v. Bradshaw, — S.W.3d —-, 2009 WL 2834836 (Tex.App.-Texarkana 9/4/09).

Deceased's Arbitration Agreement Not Binding on Daughter

The Court of Appeal of California, Second Appellate District, has held that a minor whose mother died after surgery and who sued the surgeon for her mother's wrongful death can not be compelled to submit her claim to arbitration under the arbitration agreement that her mother signed with the surgeon. Rodriguez v. Superior Court (Witzling), 176 Cal.App.4th 1461 (Cal.. App. 2 Dist., 8/25/09). The deceased, Lee Newton, signed a physician-patient arbitration agreement with her doctor, Sandy Witzling, a few days before gallbladder surgery. Newton died in recovery following the surgery. Newton's minor daughter, Rion Rodriguez, sued Witzling for Newton's wrongful death from his medical malpractice in allegedly damaging Newton's liver during the surgery.

Witzling petitioned to compel arbitration under the agreement with Newton. The agreement also provided that it could be revoked within 30 days of its execution, which Rodriguez's guardian ad litem failed to do. Rodriguez argued that the cooling-off period of Code Civ. Proc. ' 1295, on which the agreement's text was based, had not expired when Newton died, and that compelled arbitration was inconsistent both with ' 1295's underlying policy and with public policy that waiver of jury trial had to be voluntary, knowing, and intelligent. The trial court granted Witzling's petition and ordered a stay in proceedings as to Witzling only until arbitration was completed. Rodriguez petitioned for writ of mandate.

The court deemed the threshold issue to be whether a valid waiver of the right to jury trial was made, without which no enforceable agreement existed. And, even assuming Newton had parental authority to waive Rodriguez's right to jury trial, the agreement would be ineffective if not knowingly and voluntarily made. Here, Newton was given the arbitration agreement only four days before her scheduled surgery, under circumstances in which the court believed she could have thought she had to sign the agreement in order to have Witzling perform the surgery. This tended to show a lack of voluntariness. Further, Newton's death prevented any evidentiary findings as to her alleged waiver of rights, not to mention Rodriguez's, to jury trial was knowing and voluntary, and her death prior to the expiration of the 30-day “cooling off” period made it impossible for full compliance with ' 1295's requirements. The court therefore concluded that Witzling would be unable to carry his burden of proving that an agreement existed.

Absent proof of a knowing and voluntary waiver of the constitutional right to a jury trial, that right had to prevail over ' 1295's competing legislative preference for arbitration of medical malpractice claims. Therefore, the court of appeal granted the petition, holding that Rodriguez was not compelled to arbitrate her wrongful death claim against Witzling.

Florida Court Confirms Plaintiff's Right to Access Past Adverse Event Records

Florida's Circuit Court for the Seventeenth Judicial Circuit, Broward County, has held that, in a case in which a plaintiff sought discovery of a hospital's records of patient falls over a period of five years, the trial court's order denying the hospital's objections to the discovery requests did not depart from the essential requirements of Florida's constitutional law permitting such discovery, and that law is not contrary to federal statutory law or the U.S. Constitution. Columbia Hosp. Corp. of South Broward v. Fain, — So.3d —-, 2009 WL 2516917 (Fla.App. 4 Dist., 8/19/09).

Decedent William Fain fell out of his bed and died of his injuries while an inpatient at Columbia Hospital Corporation of South Broward (Columbia), d/b/a Westside Regional Medical Center, in Florida. His estate sued Columbia for medical negligence. In discovery, and pursuant to Amendment 7 of Florida's constitution, the estate requested incident reports concerning the decedent's fall. (Article X, Section 25 of the Florida Constitution, enacted as “Amendment 7,” concerns a patient's right to discover records related to adverse medical incidents.) The estate also asked for all adverse medical incident reports filed in the previous five years relating to falls of other patients who were under “fall precautions.” Columbia objected to the requests on a number of grounds, including that the tenets of Amendment 7 did not comport with federal statutory law and with the U.S. Constitution. The trial court entered an order compelling production.

Columbia sought to quash the trial court's order arguing, inter alia, that the trial court failed to consider or rule on its argument that Amendment 7 violates the Supremacy Clause of the U.S. Constitution and is preempted by federal legislation. Columbia's primary argument was that Amendment 7 was impliedly preempted by the Health Care Quality Improvement Act of 1986 (HCQIA) because the abolition of peer review discovery protections is contrary to the Act's intent to foster ” effective peer review.” 42 U.S.C. ' 11101, et seq. (2008). The court here found, however, that nothing in the HCQIA requires the states to provide confidentiality for peer review materials, because an “effective peer review” does not necessarily require confidentiality. Instead, HCQIA accomplishes its purpose of encouraging effective professional peer review through its immunization of peer review bodies, and those providing information in such proceedings, from damages in a civil suit. 42 U.S.C. ' 11111. Finding that the trial court's order denying Columbia's objections to the discovery requests for Amendment 7 material did not depart from the essential requirements of law, the petition to quash the trial court's order was denied.

Strict Adherence to Service Method Constraints Not Required

The Court of Appeals of Texas, Texarkana, has held that a trial court improperly dismissed a medical malpractice claim for failure to properly serve the defense with the statutorily required health care expert reports and curricula vitae (CVs), because although the service was not accomplished in the manner set forth by statute, the defense did in fact receive the documents within the required time, and no harm resulted from the plaintiff's using the unauthorized service method. Goforth v. Bradshaw, — S.W.3d —-, 2009 WL 2834836 (Tex.App.-Texarkana 9/4/09).

Deceased's Arbitration Agreement Not Binding on Daughter

The Court of Appeal of California, Second Appellate District, has held that a minor whose mother died after surgery and who sued the surgeon for her mother's wrongful death can not be compelled to submit her claim to arbitration under the arbitration agreement that her mother signed with the surgeon. Rodriguez v. Superior Court (Witzling), 176 Cal.App.4th 1461 (Cal.. App. 2 Dist., 8/25/09). The deceased, Lee Newton, signed a physician-patient arbitration agreement with her doctor, Sandy Witzling, a few days before gallbladder surgery. Newton died in recovery following the surgery. Newton's minor daughter, Rion Rodriguez, sued Witzling for Newton's wrongful death from his medical malpractice in allegedly damaging Newton's liver during the surgery.

Witzling petitioned to compel arbitration under the agreement with Newton. The agreement also provided that it could be revoked within 30 days of its execution, which Rodriguez's guardian ad litem failed to do. Rodriguez argued that the cooling-off period of Code Civ. Proc. ' 1295, on which the agreement's text was based, had not expired when Newton died, and that compelled arbitration was inconsistent both with ' 1295's underlying policy and with public policy that waiver of jury trial had to be voluntary, knowing, and intelligent. The trial court granted Witzling's petition and ordered a stay in proceedings as to Witzling only until arbitration was completed. Rodriguez petitioned for writ of mandate.

The court deemed the threshold issue to be whether a valid waiver of the right to jury trial was made, without which no enforceable agreement existed. And, even assuming Newton had parental authority to waive Rodriguez's right to jury trial, the agreement would be ineffective if not knowingly and voluntarily made. Here, Newton was given the arbitration agreement only four days before her scheduled surgery, under circumstances in which the court believed she could have thought she had to sign the agreement in order to have Witzling perform the surgery. This tended to show a lack of voluntariness. Further, Newton's death prevented any evidentiary findings as to her alleged waiver of rights, not to mention Rodriguez's, to jury trial was knowing and voluntary, and her death prior to the expiration of the 30-day “cooling off” period made it impossible for full compliance with ' 1295's requirements. The court therefore concluded that Witzling would be unable to carry his burden of proving that an agreement existed.

Absent proof of a knowing and voluntary waiver of the constitutional right to a jury trial, that right had to prevail over ' 1295's competing legislative preference for arbitration of medical malpractice claims. Therefore, the court of appeal granted the petition, holding that Rodriguez was not compelled to arbitrate her wrongful death claim against Witzling.