IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC09- L.T. Case No. 4D08-1429 COLUMBIA HOSPITAL CORPORATION OF SOUTH BROWARD, d/b/a WESTSIDE REGIONAL MEDICAL CENTER, a foreign For profit corporation, v. Petitioner/Defendant, REBECCA FAIN, as Personal Representative of the Estate of WILLIAM THOMAS FAIN, Respondent/Plaintiff. / PETITIONER'S BRIEF ON JURISDICTION On Discretionary Review From a Decision of the Fourth District Court of Appeal CARLTON FIELDS, P.A. 100 SE 2nd Street, Suite 4000 Miami, Florida 33131 Telephone: (305) 530-0050 Facsimile: (305) 530-0055 By: STEPHEN J. BRONIS WALTER J. TACHE CRISTINA ALONSO JESSICA ZAGIER WALLACE Counsel for Petitioner CARLTON FIELDS, P.A. 215 S. Monroe Street, Suite 500 Tallahassee, Florida 32301 Telephone: (850) 224-1585 Facsimile: (850) 222-0398 By: CHRISTINE DAVIS GRAVES
TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 I. THE FOURTH DISTRICT CONSTRUES ARTICLE X, SECTION 25 OF THE FLORIDA CONSTITUTION.... 3 II. THE DECISION EXPRESSLY CONSTRUES AMENDMENT 7 AND THE SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION.... 7 CONCLUSION... 10 CERTIFICATE OF SERVICE... 12 CERTIFICATE OF COMPLIANCE... 12 APPENDIX... 13 i
TABLE OF AUTHORITIES Page Cases Advisory Opinion to the Atty. Gen. re Patients' Right To Know About Adverse Medical Incidents, 880 So. 2d 617 (Fla. 2004)... 5, 6, 9 Citigroup, Inc. v. Holtsberg, 915 So. 2d 1265 (Fla. 4th DCA 2005)... 6 Columbia Hospital Corp. of So. Broward v. Fain, No. 4D08-4578, 34 Fla. L. Weekly D1677, 2009 WL 2516917 (Fla. 4th DCA August 19, 2009)... 1 Cruger v. Love, 599 So. 2d 111 (Fla. 1992)... 9 Dade County Med. Ass'n v. Hlis, 372 So. 2d 117 (Fla. 3d DCA 1979)... 9 Elkins v. Syken, 672 So. 2d 517 (Fla. 1996)... 5 Evans v. Firestone, 457 So. 2d 1351 (Fla. 1984)... 6 Fine v. Firestone, 448 So. 2d 984 (Fla. 1984)... 7 Florida Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008)...9, 10 Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000)... 8 Ming Wei Liu v. Board of Trustees of the University of Alabama, No. 09-10011, 2009 WL 1376498, *2 (11th Cir. May 19, 2009)... 9 State v. Division of Bond Finance of the Dep't of General Services, 278 So. 2d 614 (Fla. 1973)... 6 ii
TABLE OF AUTHORITIES (Continued) Page Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2002)... 8 Other Authorities 42 U.S.C. 11101, et seq.... 1 Article V, Section 2(a), Florida Constitution... 3 Article V, Section 2, Florida Constitution... 6 Article V, Section 3(b)(3), Florida Constitution... 2 Article X, Section 25, Florida Constitution... 1, 2, 3 Article XI, Section 3, Florida Constitution...3, 6 Associated Press, Lawyer Wants Tampa Hospital's Files Back to '34, Miami Herald, Sept. 25, 2009, http://www.miamiherald.com /news/florida/ap/story/1251593.html... 4 Rules Florida Rule of Appellate Procedure 9.030(a)(2)(A)(ii)... 2 Florida Rule of Civil Procedure 1.280... 2, 4, 5 iii
STATEMENT OF THE CASE AND FACTS "This case involves Article X, Section 25 of the Florida Constitution, enacted as 'Amendment 7,' regarding a patient's right to discover records related to adverse medical incidents." (Opinion at 1). Decedent, William Fain, fell from a hospital bed and subsequently died while an inpatient at Westside Memorial Regional Medical Center. (Opinion at 1-2). Respondent, Fain's Estate, sued Petitioner Columbia Hospital Corporation of South Broward d/b/a Westside Memorial Regional Medical Center ("Westside") for medical negligence. (Opinion at 2). During discovery, and pursuant to Amendment 7, the Estate requested incident reports for Fain's fall, and all adverse medical incident reports involving patient falls within the last five years. (Opinion at 2). Westside objected on various grounds, including that the requests were overbroad, unduly burdensome, and irrelevant. (Opinion at 2, 4). Additionally, Westside argued that Amendment 7 violates the Supremacy Clause of the U.S. Constitution and is preempted by the Health Care Quality Improvement Act of 1986 ("HCQIA"), found at 42 U.S.C. 11101, et seq. (Opinion at 6). The trial court denied the objections and granted the Estate's requests. (Opinion at 1, 4). 1 1 All facts are found within the four corners of the opinion on review, Columbia Hospital Corp. of So. Broward v. Fain, No. 4D08-4578, 34 Fla. L. Weekly D1677, 2009 WL 2516917 (Fla. 4th DCA August 19, 2009), which is referenced as "Opinion" throughout this jurisdictional brief. The Opinion is attached as Appendix 1 to this brief. 1
Westside petitioned for a writ of certiorari to quash the trial court's order. (Opinion at 1). In denying the petition, the Fourth District held that Amendment 7 eliminated a healthcare facility's right to object to a discovery request on the basis that the request was overbroad, burdensome, or irrelevant. (Opinion at 4-5). The Fourth District also held that Amendment 7's impact upon state peer review privilege statutes did not violate the Supremacy Clause of the U.S. Constitution because Amendment 7 is not impliedly preempted by HCQIA. (Opinion at 6-8). The Fourth District denied Westside's petition for writ of certiorari, reasoning Westside's objections were invalid under Amendment 7. SUMMARY OF THE ARGUMENT This Court has jurisdiction over this case under article V, section 3(b)(3) of the Florida Constitution because the Fourth District expressly construed provisions of the Florida and U.S. constitutions. See Fla. R. App. P. 9.030(a)(2)(A)(ii). The court expressly construed article X, section 25 of the Florida Constitution ("Amendment "7) by explaining that there is no limit on what can be requested under the amendment, no matter how excessive. In applying that construction to pending litigation, the court found that Amendment 7 abolished a healthcare facility's right to object to a discovery request on grounds that the request is overbroad, unduly burdensome, or irrelevant, as permitted by Florida Rule of Civil Procedure 1.280. 2
The court also expressly construed the amendment and the Supremacy Clause of the United States Constitution by finding that HCQIA did not preempt the right of citizens to pass a constitutional amendment that undermines the confidentiality of healthcare facilities' peer review processes. This Court should exercise jurisdiction over this case because the Fourth District's interpretations of Amendment 7 and the Supremacy Clause raise significant issues, including whether there is any limit on what can be requested under the amendment, regardless of considerations of reasonableness; whether the judiciary's traditional gatekeeping function in discovery may be eliminated in violation of Article V, section 2(a) and Article XI, section 3 of the Florida Constitution; and whether courts' construction of the Supremacy Clause precludes consideration of whether Amendment 7's methods constitute an obstacle to the purpose under federal law of promoting quality health care through effective peer review. ARGUMENT I. THE FOURTH DISTRICT CONSTRUES ARTICLE X, SECTION 25 OF THE FLORIDA CONSTITUTION. In reaching its holding that Amendment 7 abolishes a healthcare facility's right to object to discovery on the grounds of overbreadth, burdensomeness, and irrelevance, the Fourth District expressly construed, and based its holding on Amendment 7. The court held that burdensomeness is not a relevant consideration 3
under Amendment 7 and that, "[p]ursuant to the amendment, a 'patient' has the absolute right to discover records relating to any adverse medical incident and that right is not conditioned on discovery being relevant to a pending claim." (Opinion at 4-5). The court's decision below arguably eliminates any limitation based on reasonableness in response to an Amendment 7 request. Arguably, considerations of reasonableness do not apply even where a request is framed for purposes of harassment or where responding to an extremely burdensome request interferes with a health care facility's ability to carry out other state-mandated risk management functions. See Associated Press, Lawyer Wants Tampa Hospital's Files Back to '34, Miami Herald, Sept. 25, 2009, http://www.miamiherald.com /news/florida/ap/story/1251593.html. Whether the right to records under Amendment 7 may ever be tempered based on considerations of reasonableness is an issue squarely presented by the court's decision below. Furthermore, the Fourth District expressly construes Amendment 7 to eliminate certain discovery protections authorized by this Court under Florida Rule of Civil Procedure 1.280. The court held that Amendment 7 overrides the rules of procedure in litigation, stating that, "[a] request for Amendment 7 materials is not an ordinary discovery request which can be subjected to overbreadth, irrelevance, or burdensomeness objections." (Opinion at 4). According to the court, under Amendment 7, a party has "the absolute right" to discovery, which "is not 4
conditioned on the discovery being relevant to a pending claim." Id. This construction goes beyond the language of Amendment 7, which does not purport to eliminate judicial discretion over discovery, which discretion is of great importance to the civil court process. See Elkins v. Syken, 672 So. 2d 517, 522 (Fla. 1996) ("To allow discovery that is overly burdensome and that harasses, embarrasses, and annoys one's adversary would lead to a lack of public confidence in the credibility of the civil court process."). By so holding, the court essentially construes Amendment 7 as altering or adopting a new rule of civil procedure as to discovery requests under the amendment. This Court has jurisdiction. This Court should accept jurisdiction because this construction raises constitutional questions regarding the power of the judiciary. First, Amendment 7 was not intended to substantially alter or perform a function of the judiciary. See Advisory Opinion to the Atty. Gen. re Patients' Right To Know About Adverse Medical Incidents, 880 So. 2d 617, 621 (Fla. 2004) ("Advisory Opinion") (an initiative petition may not "substantially alter or perform the functions of multiple aspects of government."). Instead, the amendment focused on legislative provisions, not the judiciary. Id. at 620-21. ("the amendment does not expressly affect either rule 1.280(c) or the attorney-client privilege, and there is no evidence of any intent to do so."). This Court explained that Amendment 7's effect on Rule 1.280 was "speculative" and that its effect on Rule 1.280 "would not rise to the 5
level of 'substantially' altering or performing a function of the judiciary." Id. at 621. Thus, the Fourth District's interpretation of Amendment 7 as abolishing judicial discretion over burdensomeness, overbreadth and relevance objections raises constitutional concerns under Article XI, section 3 of the Florida Constitution to the extent that it usurps a function of the judiciary, and therefore goes beyond what was contemplated in the Advisory Opinion. Compare Evans v. Firestone, 457 So. 2d 1351, 1354 (Fla. 1984) (striking down initiative petition that affected both legislative provisions and the summary judgment rule under the Florida Rules of Civil Procedure). Moreover, to the extent the court's construction alters procedural rules by its own initiative, the alteration of the procedural rules by a district court raises constitutional concerns as well. Article V, section 2 of the Florida Constitution confers upon the Florida Supreme Court the exclusive responsibility to "adopt rules for the practice and procedure in all courts." See Citigroup, Inc. v. Holtsberg, 915 So. 2d 1265, 1269 (Fla. 4th DCA 2005). "It is a fundamental rule of construction that, if possible, amendments to the Constitution should be construed so as to harmonize with other constitutional provisions." State v. Division of Bond Finance of the Dep't of General Services, 278 So. 2d 614, 617 (Fla. 1973). If an initiative petition is intended to conflict with other parts of the constitution, the "petition should identify the articles or sections 6
of the constitution substantially effected." Fine v. Firestone, 448 So. 2d 984, 989 (Fla. 1984). This construction of Amendment 7, which fails to harmonize the amendment with other provisions of the Florida Constitution, results in an interpretation that eliminates trial judges' ability to control burdensome requests under Amendment 7, even if intended to harass or gain an advantage, and will consequently have broad effect on litigation in Florida. II. THE DECISION EXPRESSLY CONSTRUES AMENDMENT 7 AND THE SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION. The Fourth District held that Amendment 7 was not impliedly preempted by HCQIA, rejecting Westside's argument that Amendment 7 is an obstacle to HCQIA's full purpose and objective of providing for effective peer review. This holding could not have been reached without expressly construing Amendment 7 and the Supremacy Clause of the U.S. Constitution. This Court has jurisdiction. This Court should exercise this jurisdiction because the court's construction of implied preemption under the Supremacy Clause has precluded consideration of the obstacle that Amendment 7's record access provision poses to HCQIA's purpose of promoting effective peer review. While the Fourth District agreed that the purpose of HCQIA is to promote effective peer review (Opinion at 6-7), and Florida's statutory confidentiality 7
provisions may contribute to effective peer review (Opinion at 8), because HCQIA did not require confidentiality, the Fourth District found no obstacle preemption under the U.S. Constitution. (Opinion at 6-8). The court held, "[t]hese discovery protections were not mandated by the HCQIA, and while they may have contributed to effective peer review in Florida, the people of the State of Florida are not preempted from abolishing these statutory protections by constitutional amendment." (Opinion at 8). The Fourth District's construction interprets the Supremacy Clause as requiring a violation of an express provision of HCQIA, rather than as requiring an obstacle to HCQIA's full purposes and objectives. In truth, express intent to preempt state law is not required before conflict or obstacle preemption can be found. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 884-85 (2000). Instead, the court is to look at "the relationship between state and federal laws as they are interpreted and applied, not merely as they are written." Ting v. AT&T, 319 F.3d 1126, 1137 (9th Cir. 2002) (citations omitted). The Fourth District's construction of the Supremacy Clause precludes consideration of the obstacle Amendment 7 presents to the full purpose and objective of HCQIA to provide effective peer review. While HCQIA and Florida's statutory provisions regarding peer review attempt to improve the quality of health care by facilitating the frank exchange of information among professionals 8
conducting peer review inquiries without fear of reprisals, Ming Wei Liu v. Board of Trustees of the University of Alabama, No. 09-10011, 2009 WL 1376498, *2 (11th Cir. May 19, 2009), Amendment 7 attempts to improve quality of health care through medical choice by opening access to "information concerning a particular health care provider's or facility's investigations, incidents or history of acts, neglects, or defaults that have injured patients or had the potential to injure patients." Advisory Opinion at 618. The Fourth District's construction of the Supremacy Clause did not allow it to consider the obstacle that Amendment 7's methods pose to HCQIA's objective of effective peer review. See, e.g., Cruger v. Love, 599 So. 2d 111, 113 (Fla. 1992) ("to make meaningful peer review possible, the legislature provided a guarantee of confidentiality for the peer review process."); Dade County Med. Ass'n v. Hlis, 372 So. 2d 117, 120 (Fla. 3d DCA 1979) ("Confidentiality is essential to effective functioning of these staff meetings; and these meetings are essential to the continued improvement in the care and treatment of patients."); see also Advisory Opinion at 622; (Opinion at 8). This Court recognized this policy conflict in Florida Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478, 494 (Fla. 2008) as to Amendment 7: It is not for us to judge the wisdom of the constitutional amendments enacted or the change in public policy pronounced through those amendments, even in instances where the change involves abrogation of long-standing legislation that establishes and promotes an equally or arguably more compelling public policy. 9
This Court in Buster did not address the conflict between effective peer review and Amendment 7 because it was not necessary to determine the issues presented in that case, i.e. retroactivity of the amendment, whether it was self executing and constitutionality of the enabling statute. In this case, by contrast, Westside argues that Amendment 7 constitutes an obstacle to the full purpose and objective of effective peer review of HCQIA based on the Supremacy Clause, which challenge squarely presents this issue. Because the Fourth District's construction of the Supremacy Clause requires a statutory mandate for obstacle preemption thus failing to assess the obstacle that Amendment 7 presents to HCQIA's object and purpose of effective peer review, this Court should accept jurisdiction. CONCLUSION Based on the foregoing, Petitioner, Columbia Hospital Corporation of South Broward, d/b/a Westside Regional Medical Center, respectfully requests that this Court review the district court's decision and quash it. 10
CARLTON FIELDS, P.A. 100 SE 2nd Street, Suite 4000 Miami, Florida 33131 Telephone: (305) 530-0050 Facsimile: (305) 530-0055 By: STEPHEN J. BRONIS Florida Bar No. 0145970 WALTER J. TACHE Florida Bar No. 028850 CRISTINA ALONSO Florida Bar No. 327580 JESSICA ZAGIER WALLACE Florida Bar No. 0956171 CARLTON FIELDS, P.A. 215 S. Monroe Street, Suite 500 Tallahassee, Florida 32301 Telephone: (850) 224-1585 Facsimile: (850) 222-0398 By: Counsel for Petitioner CHRISTINE DAVIS GRAVES Florida Bar No.: 569372 11
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail this 29th day of September, 2009, to the following: ROBERTS & DURKEE, PA David Durkee Alhambra Towers, Penthouse I 121 Alhambra Plaza, Suite 1603 Coral Gables, FL 33134 Counsel for Respondents/Plaintiffs HUNTER, WILLIAMS & LYNCH, PA Christopher J. Lynch, Esq. 75 Valencia Avenue Suite 1150 Coral Gables, Florida 33134 Co-Counsel for Respondents/Plaintiffs BILLING, COCHRAN, HEATH, LYLES, MAURO & RAMSEY, PA John W. Mauro SunTrust Center, 6th Floor 515 East Las Olas Boulevard Fort Lauderdale, Florida 33301 Counsel for Westside Regional Medical Center and All About Staffing The Honorable David Krathen Broward County Judicial Complex 201 SE 6th Street, Room 1005A Ft. Lauderdale, FL 33301 COLE, SCOTT & KISSANE, PA Ashley Sybesma, Esq. 1390 Brickell Avenue, 3rd Floor Miami, FL 33131 Counsel for Nightingale Nurses, LLC By: CHRISTINE DAVIS GRAVES CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that this brief complies with the font requirements set forth in Florida Rule of Appellate Procedure 9.210 by using Times New Roman 14-point font. 15736854 By: CHRISTINE DAVIS GRAVES 12
APPENDIX Columbia Hospital Corp. of So. Broward v. Fain, No. 4D08-4578, 34 Fla. L. Weekly D1677, 2009 WL 2516917 (Fla. 4th DCA August 19, 2009). 13