Medical Incident Reports Not Protected As Work Product

The Third DCA recently addressed whether a healthcare facility’s adverse medical incident reports are protected as attorney work product. In a unanimous opinion, the Court held that the work product privilege does not extend to comments and findings of hospital personnel routinely contained in adverse medical incident reports.

In reaching this decision, the court compared the petitioners’ constitutional right under Amendment 7, titled “Patients’ right to know about adverse medical incidents,” to the attorney work product protection afforded by Rule 1.280(b)(3), Florida Rules of Civil Procedure.

The fact work product privilege protects information which relates to the case and is gathered in anticipation of litigation. Opinion work product privilege protects an attorney’s mental impressions, conclusions, opinions, and theories concerning litigation. Unlike the opinion work product protection, fact work product is not entitled to absolute protection. Because Amendment 7 abrogates any fact work product privilege, the Court’s decision turned on whether adverse medical incident reports were protected as opinion work product. Relying on a Second DCA case, the Court held that, despite being prepared in anticipation of litigation, the petitioners had a right to the documents in question. Acevedo v. Doctors Hosp., Inc., 2011 WL 3586185 (Fla.3d DCA 2011).