Avante Villa at Jacksonville Beach, Inc. v. Estate of Payson, 2007 Fla. App. LEXIS 8716 (Ct. App. 1st Dist. June 5, 2007)

Darlene Payson was a resident at Avanta Villa at Jacksonville, a nursing home. After her death, her estate filed an action under Florida’s resident rights statute. The estate alleged a failure to take adequate precautions or provide adequate supervision and, as a result, Payson suffered numerous falls, one of which resulted in a right pneumothorax, subdural hematoma and subarachnoid hemorrhage. Payson died on December 15, 2003.

On April 5, 2005, and February 8, 2006, the estate made discovery requests including interrogatories and two requests for production. Avante objected to the discovery citing confidentiality. It argued the documents included self-critical analysis and quality assurance materials. Rather than producing the documents, Avante produced what it alleged was a privilege log listing “two unusual occurrence incident reports and two incident log analyses.”

The trial court ordered an in camera inspection of the documents. The trial court’s ruling hinged on Amendment 7 to the Florida Constitution (adopted 2004) which authorizes discovery of documents related to adverse medical incidents occurring in health care facilities or under health care providers. The trial court ruled that the disputed documents were from a health care facility when it ordered the in camera inspection.

Avante sought review of the order. On appeal, the Court found that the statutory definitions of “health care provider” and “health care facility” do not include a nursing facility. Thus, Amendment 7 excludes nursing homes from compelled discovery of adverse events. The court found that the trial court departed from the essential requirements of law in ordering production of the incident reports. Nonetheless, because the question is of great public importance, the court of appeals certified the following question to the Florida Supreme Court: WHETHER “NURSING HOMES” OR “SKILLED NURSING FACILITIES” FALL WITHIN THE DEFINITION OF ‘HEALTH CARE FACILITY” OR HEALTH CARE PROVIDER” AS CONTEMPLATED BY AMENDMENT 7 TO THE FLORIDA CONSTITUTION?