Florida/Georgia Personal Injury & Workers Compensation

...gement privileges set forth in various state statutes and federal rules. Specifically, section 42 C.F.R. § 483.75 provides that no state may require disclosure of such records except as necessary to assure regulatory compliance with the regulation. Section 400.119, Florida Statutes (2001), provides for confidentiality of "[r]ecords of meetings of the risk management and quality assurance committee of a long-term care facility ..., as well as incident reports filed with the facility's risk manag...

...rts. Therefore, the trial court directed delivery of the reports to the Estate's counsel. In its petition for certiorari, Mariner first argues that the incident reports are protected from discovery by statute, specifically sections 400.118(2)(c) and 400.119(1), Florida Statutes (2003), and therefore, the trial court departed from the essential requirements of the law in determining that the reports were discoverable....

...n. In reaching our conclusion, not only have we rejected Mariner's argument that the reports are protected from discovery by section 400.118, as previously discussed, we also reject Mariner's argument that the reports are protected from discovery by section 400.119. Section 400.119(1) provides for the confidentiality of the records and meetings of risk management and quality assurance committees as well as certain incident reports....

...riner's risk management personnel for consideration at quality assurance/risk management meetings and are part of the records of those meetings, they are not discoverable. Mariner also relies on Fluitt to support this argument. Mariner's reliance on section 400.119 is misplaced. The protection afforded by section 400.119(1) addresses the public's right of access to the documents as otherwise provided by section 119.07(1) and Article I, section 24(a) of the Florida Constitution. The protection does not extend to or even address discovery privileges and, thus, does not preclude discovery of the incident reports as asserted by Mariner. We recognize that Fluitt appears to apply section 400.119 as a discovery privilege that could exempt incident reports "[i]f they are records from quality assurance/risk management meetings or communications regarding the like." However, Fluitt does not contain any analysis of section 400.119. As we have already explained, we do not agree that section 400.119 provides a discovery privilege....

...She also requested peer review documents and quality assurance records. Amendment 7 gives "patients" the right to access records of adverse "medical incidents" in the hands of "health care providers" and "health care facilities." Unless Amendment 7 applies, the documents in question are protected from discovery by section 400.119, Florida Statutes (2006) (providing for confidentiality of incident reports) and section 400.147 (pertaining to internal risk management and quality assurance programs, including provisions making adverse incident reports confidential and not admissible or discoverable)....

...However, as Fluitt suggests, such reports would only be discoverable upon a showing of need and the inability without undue hardship to obtain a substantial equivalent from other sources. CERTIORARI GRANTED; ORDER QUASHED. PETERSON and PALMER, JJ., concur. . Section 400.119(1), Florida Statutes (2003), provides for confidentiality of “[r]ecords of meetings of the risk management and quality assurance committee of a long-term care facility ..., as well as incident reports filed with the facility's risk...