Opinion
Case No. 6D23-592
09-29-2023
Philip REGALA, M.D., Philip Regala M.D., P.L., f/k/a Philip Regala, M.D., P.A., and Physicians Day Surgery Center, LLC, Petitioners, v. Michael MCDONALD, Respondent.
Jason M. Azzarone, Louis J. La Cava, Amanda M. Smith, and Mark R. Messerschmidt, of La Cava, Jacobson & Goodis, P.A., Tampa, for Petitioners. George A. Vaka and Nancy A. Lauten, of Vaka Law Group, Tampa, for Respondent.
Appeal from the Circuit Court for Collier County. Hugh D. Hayes, Judge. Lower Tribunal No. 19-CA-2848
Jason M. Azzarone, Louis J. La Cava, Amanda M. Smith, and Mark R. Messerschmidt, of La Cava, Jacobson & Goodis, P.A., Tampa, for Petitioners.
George A. Vaka and Nancy A. Lauten, of Vaka Law Group, Tampa, for Respondent.
PER CURIAM
Petitioners/Defendants Philip Regala, M.D., Philip Regala, M.D., P.L. (collectively "Dr. Regala"), and Physicians Day Surgery Center, LLC (hereafter "PDSC") seek a writ of certiorari quashing the trial court’s order requiring that they respond to interrogatories propounded by Respondent/Plaintiff Michael McDonald in the underlying medical malpractice/negligent credentialing suit. Petitioners take issue with four interrogatories, asserting that the information sought is not considered a "record" under article X, section 25 of the Florida Constitution ("Amendment 7") and is otherwise immune from discovery pursuant to sections 395.0191(8), 395.0193(8), and 766.101(5), Florida Statutes (2022). For the reasons expressed below, we grant the petition in part and deny it in part.
This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.
BACKGROUND
In 2016, McDonald broke a bone in his foot while on a ladder. He was treated by Dr. Regala, an orthopedic physician, at PDSC’s ambulatory surgical facility, where Dr. Regala held staff privileges. McDonald alleges that PDSC’s negligent credentialing of Dr. Regala and Dr. Regala’s negligent care resulted in the amputation of his leg. McDonald’s complaint alleges Dr. Regala’s negligence in Count I; the vicarious liability of Philip Regala, M.D., P.L. in Count II; the negligent selection, credentialing, retention, granting of privileges, and oversight of Dr. Regala by PDSC in Count III; and the vicarious medical negligence of PDSC in Count IV.
McDonald propounded several interrogatories to Dr. Regala and PDSC. Of those, one interrogatory directed to PDSC and three interrogatories directed to Dr. Regala are at issue here:
Directed to PDSC
Interrogatory 22: Identify each and every person who had responsibility for determining whether Dr. Regala would be issued privileges to treat patients at your facility.
Directed to Dr. Regala
Interrogatory 20: State with specificity the date on which you were granted privileges at [PDSC], and identify each and every person who interviewed you during the process of obtaining privileges, as well as your contact person or persons with the facility during that process.
Interrogatory 22: Have you ever been the subject of a risk management, peer review, quality assurance, or other investigation or proceeding arising out of an adverse medical incident? If so, pursuant to Art. X, § 25, Fla. Const., please identify all documents created as a result by title, subject, date, author, and current custodian.
Interrogatory 29: Have you ever sought privileges or sought to reinstate privileges at any hospital or ambulatory surgical center or other entity licensed under Florida Chapter 395, and were either rejected or told that you would be rejected if you pursued privileges? If so, please set forth each and every instance and ALL reasons set forth for said response by each such entity.
Petitioners objected to these interrogatories, asserting that the information sought was statutorily immune from discovery. McDonald countered that Amendment 7 contemplates discovery of such information, which would trump any objections Petitioners have concerning statutory immunity. Following a hearing, the trial court overruled the objections and ordered PDSC and Dr. Regala to respond to the interrogatories. They seek certiorari relief from that order.
ANALYSIS
[1–3] To be entitled to certiorari relief, Petitioners must establish "1) a departure from the essential requirements of the law; 2) resulting in material injury for the rest of the trial; 3) that cannot be remedied on post-judgment appeal." Walt Disney Parks & Resorts U.S., Inc. v. Alesi, 351 So. 3d 642, 644 (Fla. 5th DCA 2022). Because the second and third elements, which are jointly referenced as "irreparable harm," are jurisdictional, they must be established before the first element, i.e., the merits, may be addressed. DecisionHR USA, Inc. v. Mills, 341 So. 3d 448, 452 (Fla. 2d DCA 2022) (quoting Tanner v. Hart, 313 So. 3d 805, 807 (Fla. 2d DCA 2021)); see also Miami Dade Coll. v. Allen, 271 So. 3d 1194, 1196 (Fla. 3d DCA 2019) ("A party seeking certiorari review of a non-final order must first demonstrate that the order under review would result in a material injury that cannot be corrected on appeal (often referred to as ‘irreparable harm’)."). Should Petitioners be required to disclose information that is otherwise privileged and immune from discovery, irreparable harm would result; accordingly, we find that the threshold requirement of showing irreparable harm is met. See Tarpon Springs Hosp. Found. Inc. v. White, 286 So. 3d 879, 881–82 (Fla. 2d DCA 2019) ("An order requiring the production of documents privileged under section 395.0191 that do not relate to an adverse medical incident satisfies the ‘threshold showing of irreparable harm necessary to invoke this court’s certiorari jurisdiction.’ " (quoting Bartow HMA, LLC v. Kirkland, 126 So. 3d 1247, 1252 (Fla. 2d DCA 2013) (concluding that because the requests for production may require the disclosure of privileged documents, petitioner met the threshold showing of irreparable harm))).
Petitioners argue that the trial court’s order departs from the essential requirements of law because (1) Amendment 7 applies only to requests for the production of records, not testimonial interrogatory answers, and thus does not apply to lift the statutory immunity otherwise afforded to the requested information; and (2) the order requires disclosure of information protected by sections 395.0191(8), 395.0193(8), and 766.101(5), and Amendment 7 does not otherwise control.
I. Whether Amendment 7 Applies to the Interrogatories at Issue.
[4] The initial issue we address is whether Amendment 7 applies to the interrogatories at issue in this petition. To answer this question, we turn to the language of Amendment 7, which states:
Because it is not at issue in this proceeding, we do not decide whether an interrogatory that solely sought identification of documents within the scope of Amendment 7 would be authorized by the amendment. We decide only that Amendment 7 does not authorize the interrogatories at issue in this case.
(a) In addition to any other similar rights provided herein or by general law, patients have a right to have 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.
(b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.
(c) For purposes of this section, the following terms have the following meanings:
….
(4) The phrase "have access to any records" means, in addition to any other procedure for producing such records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records which have been made publicly available by publication or on the Internet may be "provided" by reference to the location at which the records are publicly available.
(Emphasis added). While Amendment 7 expressly gives a right of access to records of adverse medical incidents, there is no mention of any right to answers to interrogatories. Indeed, there is a stark difference between "making the records available for inspection and copying" upon request and being required to answer specific questions about them, a requirement not expressly included in Amendment 7. Based on the plain language of Amendment 7, and abstaining from the invitation to read into Amendment 7 that which is not there, we conclude that Amendment 7 is not applicable to the interrogatories at issue in this proceeding.
The framework of our analysis—that the plain language of Amendment 7 is to be given its ordinary meaning, without engraftment of additional words or interpretation—is consistent with that employed by our sister court in Bauduy ex rel. D.B. v. Adventist Health System/Sunbelt, Inc., 288 So. 3d 87 (Fla. 5th DCA 2019). There, the appellant argued that the trial court erred by refusing to admit medical incident records at trial because Amendment 7’s right to access the records included the right to use the documents at trial. The Fifth District Court disagreed. It observed that the plain language of Amendment 7 did not address the use of the documents at trial, and it refused to go beyond the plain meaning of the words used in Amendment 7 to add a right that was not specifically granted therein, writing:
We cannot conclude that "use" is somehow subsumed by the term "access." While we are careful to give constitutional provisions their full meaning, we
cannot go beyond the meaning and infuse a positive right that the Florida voters did not enact. See Iselin v. United States, 270 U.S. 245, 251, 46 S.Ct. 248, 70 L.Ed. 566 (1926) ("To supply omissions [to a statute] transcends the judicial function."); Pleus v. Crist, 14 So. 3d 941, 945 (Fla. 2009) ("We remain mindful that in construing a constitutional provision, we are not at liberty to add words that were not placed there originally or to ignore words that were expressly placed there at the time of adoption of the provision.").
Id. at 90–91. Neither would the Fifth District Court engage in any attempt to construe the unambiguous text or find an ambiguity in the fact that Amendment 7 was silent on the use and admissibility of the records at trial; its silence on use and admissibility "only demonstrates that use and admissibility are beyond the amendment’s scope," the court reasoned. Id. at 91. The court concluded that there was no inconsistency between Amendment 7 and the prohibition against admissibility contained in section 395.0197, Florida Statutes (2018), and upheld the trial court’s ruling excluding the documents at trial. Id. at 91. We agree with the Fifth District Court that the review of Amendment 7 is to be confined to the plain language of Amendment 7, and find that Amendment 7 does not apply to the interrogatories at issue in this proceeding.
II. Whether Statutory Immunity is Afforded the Interrogatories.
Given our conclusion that the plain language of Amendment 7 makes it inapplicable to the interrogatories at issue and thus does not contravene any statutory immunity, we now examine each interrogatory individually to determine whether the information sought is statutorily immune from discovery by section 395.0191(8), applying to hospital staff membership privileges by a hospital licensing board; section 395.0193(8), applying to investigations, proceedings, and records of a peer review panel; or section 766.101(5), applying to peer review by a hospital medical review committee. Because sections 395.0191(8) and 395.0193(8) "provide a nearly identical discovery immunity to peer review and credentialing processes, respectively," for purposes of this opinion, our discussion of section 395.0191(8) is equally applicable to section 395.0193(8) and thus we make no further mention of section 395.0193(8). See S. Broward Hosp. Dist. v. Feldbaum, 321 So. 3d 828, 830 (Fla. 4th DCA 2021).
A. Interrogatory 22 directed to PDSC.
Interrogatory 22 directed to PDSC asks it to "[i]dentify each and every person who had responsibility for determining whether Dr. Regala would be issued privileges to treat patients at your facility." Petitioners argue that this interrogatory seeks general information contained in a credentialing file that is privileged pursuant to the peer review statutes cited above.
[5] Our first inquiry is whether section 766.101, titled "Medical review committee, immunity from liability," applies to PDSC’s credentialing committee. The statute speaks to "medical review committees" and identifies their purpose:
A medical review committee of a hospital or ambulatory surgical center or health maintenance organization shall screen, evaluate, and review the professional and medical competence of applicants to, and members of, medical staff. As a condition of licensure, each health care provider shall cooperate with a review of professional competence performed by a medical review committee.
§ 766.101(2), Fla. Stat. (2022). Although section 766.101 does not use the term "credentials committee" or "credentialing committee," the charge of the medical review committees aligns with that of credentials or credentialing committees, and the term "medical review committee" is defined sufficiently broadly so as to include such committees. See § 766.101(1)(a)1., Fla. Stat. (2022) (defining medical review committee as including a "peer review or utilization review committee" that is formed to "evaluate and improve the quality of health care rendered by providers of health service, to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care …. "). Having concluded that section 766.101 could apply in this instance, we must delve into subsection (5) thereof to determine whether it makes the information sought in this case immune from discovery.
Section 766.101(5) provides statutory immunity from discovery for credentialing committee activities:
The investigations, proceedings, and records of a committee as described in the preceding subsections shall not be subject to discovery or introduction into evidence in any civil or administrative action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, or other actions of such committee or any members thereof….
§ 766.101(5), Fla. Stat. (2022). Section 395.0191(8), on which PDSC also relies, is identical "except that it applies to the investigations, proceedings, and records of hospital boards" instead of credentialing committees. Cruger v. Love, 599 So. 2d 111, 113, 114 (Fla. 1992) (predating Amendment 7). Cruger, wherein the supreme court held that the privilege afforded by these two sections "protects any document considered by the committee or board as part of its decision-making process," answers whether information relative to "investigations, proceedings, and records" is protected. It is.
There is no claim that the information sought was confined to that generated by the credentialing committee. To the extent that the information may have been board-generated, section 395.0191(8) may apply.
In addition to protecting documents, these two statutes also protect the members of such committees or boards from being called to testify about the matters considered in the credentialing process. See 766.101(5), Fla. Stat. ("[N]o person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, or other actions of such committee or any members thereof."); § 395.0191(8), Fla. Stat. (same as applied to hospital boards). What these statutes do not specify is whether the identity of the committee or board members is immune from discovery. However, the Fifth District Court addressed this question in Palms of Pasadena Hospital v. Rutigliano, 908 So. 2d 594 (Fla. 5th DCA 2005), which we find persuasive.
In Rutigliano, the plaintiff sought the names of the members of the hospital credentialing committee so that she could depose them, admittedly to gain information about the credentialing of a staff physician. The trial court ordered the hospital to reveal those names, and the hospital objected, arguing that sections 766.101(5) and 395.0191(8) made such information immune from discovery. Id. at 594. The appellate court agreed with the hospital, finding that the cited statutes protected the names from disclosure. Id. at 594–95; see also Baptist Hosp. of Miami, Inc. v. Garcia, 994 So. 2d 390, 393 (Fla. 3d DCA 2008) ("To permit blanket disclosure of a list of all documents contained in doctors’ credentialing files and the production of a privilege log necessarily would require Baptist to divulge names and confidential information, which not only have nothing to do with adverse medical incidents discoverable under Amendment 7, but which remain exempt from discovery under sections 395.0191(8) and 766.101(5). Such a result would violate sections 395.0191(8) and 766.101(5), the very purpose of the statutory exclusions from discovery enacted pursuant to Florida Statutes (2007)."); see also All Children’s Hosp., Inc. v. Davis, 590 So. 2d 546, 546 (Fla. 2d DCA 1991) (finding "that the court erred in ordering the hospital to reveal the names and addresses of the peer review committee members present when the case was discussed"; holding that "[w]hile the names of the committee members are not specifically protected by the statute, the release of the names would neither be relevant nor lead to the discovery of admissible evidence" (citing Fla. R. Civ. P. 1.280(b))).
[6] We conclude that ordering PDSC to list the names of persons who interviewed Dr. Regala in the process of determining whether Dr. Regala should be given staff privileges (part of the credentialing process) was a departure from the essential requirements of law. This information comes within the statutory provisions protecting "investigations, proceedings, and records" of a committee or board from discovery. §§ 305.0191(8); 766.101(5), Fla. Stat. (2022). Accordingly, we quash that portion of the trial court’s order requiring PDSC to identify its committee members.
Further, even if Amendment 7 applied to these interrogatories, because the identities of such persons do not constitute records of adverse medical incidents, Amendment 7 would not require that PDSC give McDonald access to that Information.
B. Interrogatory 20 directed to Dr. Regala.
[7] Interrogatory number 20, directed to Dr. Regala, asks him to "[s]tate with specificity the date on which you were granted privileges at [PDSC], and identify each and every person who interviewed you during the process of obtaining privileges, as well as your contact person or persons with the facility during that process." We find that Dr. Regala can testify as to matters he independently had knowledge of but cannot be asked about his testimony before the credentialing committee, including any interviews conducted as part of the credentialing process, or about opinions formed by him as a result of the credentialing committee’s proceedings. Section 766.101(5) allows certain information to be discoverable where it comes from the original source:
However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his or her knowledge, but the said witness cannot be asked about his or her testimony before such a committee or opinions formed by him or her as a result of said committee hearings.
§ 766.101(5), Fla. Stat. To the extent Dr. Regala has independent knowledge of any of the facts sought in Interrogatory 20 that does not concern his testimony before the committee or opinions formed by him as a result of the committee’s proceedings, that information would come within the exception to statutory immunity, and the trial court’s order requiring him to respond to Interrogatory 20 is proper.
Section 395.0191(8) contains almost Identical language, albeit tailored to boards. Because Interrogatory 20 seeks information related to the process of obtaining privileges, i.e., the credentialing process, our discussion of interrogatory 20 references only the committee’s proceedings. However, to the extent the information sought is connected with a board proceeding, our discussion is equally applicable thereto.
C. Interrogatory 22 Directed to Dr. Regala.
Interrogatory 22 asked Dr. Regala to answer whether he had
ever been the subject of a risk management, peer review, quality assurance, or other investigation or proceeding arising out of an adverse medical incident[.] If so, pursuant to Art. X, § 25, Fla. Const., please identify all documents created as a result by title, subject, date, author, and current custodian.
[8] Petitioners label this interrogatory as an improper "blanket" request seeking a list of documents contained in a credentialing file that are outside the scope of Amendment 7 and are otherwise protected by statute. They argue that the trial court departed from the essential requirements of law in ordering Dr. Regala to answer this interrogatory. We agree.
The first portion of the interrogatory asks for information that Dr. Regala would only know because of the proceeding’s existence in the first place; therefore, the information is immune under the statutes. The second portion of the interrogatory asking him to "please identify all documents created as a result by title, subject, date, author, and current custodian," seeks information regarding the content of documents, i.e., their title, subject, date, and author, and is also immune under the statutes. As for McDonald’s reliance on Amendment 7 as support for his request, we earlier dispatched the contention that Amendment 7 applies to these interrogatories—the second part of the interrogatory goes beyond Amendment 7’s requirement to provide access to documents.
D. Interrogatory 29 Directed to Dr. Regala.
Interrogatory 29 asked Dr. Regala whether he had
ever sought privileges or sought to reinstate privileges at any hospital or ambulatory surgical center or other entity licensed under Florida Chapter 395, and were either rejected or told that you would be rejected if you pursued privileges[.] If so, please set forth each and every instance and ALL reasons set forth for said response by each such entity.
Petitioners argue that the interrogatory seeks disclosure of information considered by PDSC in its hiring and credentialing and that the information regarding Dr. Regala’s seeking of privileges is protected from discovery by sections 395.0191(8) and 766.101(5). They rely on Tarpon Springs, 286 So. 3d 879.
[9] In White, our sister court quashed a trial court order that required the hospital board to produce "each and every record that identifies each and every time [the doctor] became Board Eligible," reasoning that the order was overbroad "because it requires disclosure of privileged documents considered by the hospital board in its hiring and credentialing of [the doctor]." Id. at 883. Information Regala would possess responsive to this interrogatory may have been learned through the credentialing process and would be privileged because a person in attendance at a board or committee meeting is precluded from testifying to "any evidence or other matters produced or presented during the proceedings," including the "findings, recommendations, evaluations, opinions, or other actions" of the board or committee. Thus, we find that Dr. Regala cannot testify as to any knowledge he gained solely from the credentialing process, but he can testify concerning matters he had knowledge of independent of the credentialing process.
CONCLUSION
We conclude that Amendment 7 does not apply to the interrogatories at issue in this petition. As for the claims of statutory immunity from discovery, we conclude that the identity of the credentialing committee members is not discoverable from PDSC. Thus, we grant the petition for writ of certiorari in part and quash the trial court’s order to the extent it requires PDSC to answer Interrogatory 22, which seeks the names of the persons responsible for determining whether Dr. Regala should be issued staff privileges. We likewise grant the petition and quash the trial court’s order insofar as it requires Dr. Regala to answer Interrogatories 22 and 29. Finally, we grant the petition and quash the trial court’s order to the extent it requires Dr. Regala to disclose privileged information in response to Interrogatory 20 concerning his testimony before the committee or opinions formed by him stemming from the committee’s proceedings, as outlined above. The petition is otherwise denied.
PETITION GRANTED IN PART and DENIED IN PART.
WOZNIAK, MIZE and BROWNLEE, JJ., concur.