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Florida Fifth DCA rules that written statements of hospital employees were subject to disclosure to patient as adverse incident records despite hospital’s invocation of attorney-client privilege

On August 30, 2019, in The Nemours Foundation v. Arroyo, No. 5D19-817, the Florida Fifth DCA denied a certiorari petition from a hospital seeking relief from a trial court order requiring it to produce five written statements of hospital employees.  The statements had been sought by the plaintiff in a medical negligence action under the authority of Article 10, Section 25 of the Florida Constitution, which guarantees patient access to records relating to any “adverse medical incident.” The hospital claimed that the written statements of hospital employees were confidential attorney-client communications subject to attorney-client privilege.  The Fifth DCA specifically noted that the statements were created shortly after the procedure at issue, included no legal analysis and made no reference to an attorney’s provision of legal services, although each statement included an averment that it was prepared “in anticipation of litigation.”  The Fifth DCA considered the last statement to be “conclusory” and insufficient to satisfy the hospital’s burden of proving that the primary purpose of the communication was to relay, request or transmit legal advice. The Court instead likened to the statements to “fact work product” not protected from disclosure under Article 10, Section 25, citing Fla. Eye Clinic, P.A. v. Gmach, 14 So. 3d 1044 (Fla. 5th DCA 2009).