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Filing # 145703998 E-Filed 03/15/2022 09:36:21 AM
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
DIVISION - AF
CASE NO.: 50-2020-CA-014445-XX
JANE DOE,,
Plaintiff,
vs.
BOCA RATON REGIONAL
HOSPITAL, INC. d/b/a BOCA
RATON REGIONAL HOSPITAL
and DEVON BRIGANTL,
Defendant.
/
DEFENDANT, BOCA RATON REGIONAL HOSPITAL, INC. D/B/A BOCA
RATON REGIONAL HOSPITAL
SUPPLEMENTAL RESPONSE TO PLAINTIFF’S REQUEST FOR
PRODUCTION DATED NOVEMBER 24, 2021
The Defendant, BOCA RATON REGIONAL HOSPITAL, INC. D/B/A
BOCA RATON REGIONAL HOSPITAL and files their Supplemental response to
PLAINTIFF’S Request for Production dated NOVEMBER 24, 2021, and states as
follows:
2. Pursuant to Amendment 7, any and all adverse incident report(s)
created relating to JANE DOE.
RESPONSE:
2231266
'** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 03/15/2022 09:36:21 AM ***Case No.: 50-2020-CA-014445-XX
As a threshold matter, while patients/claimants take the position that
Amendment 7 is limitless, this is not the case. The limits of Amendment 7
have been widely recognized by the language of the Amendment itself, as
well as case law interpreting the amendment. See e.g. Brandon Regional
Hospital v. Murray, 957 So. 2d 590 (Fla. 2007); West Florida Regional
Medical Center v. See, 18 So. 3d 676 (Fla. 1 DCA 2009); Baptist Hosp. of
Miami, Inc. v. Garcia, 994 So. 2d 390 (Fla. 3d DCA 2008); Bartow HMA vy.
Kirkland, 171 So. 3d 783 (Fla. 2d DCA 2015); Bartow HMA v. Kirkland,
126 So. 2d 1247 (Fla. 2d DCA 2013); Morton Plant Hosp. Association v.
Shahbas, 960 So. 2d 820 (Fla. 2d DCA 2007).
To start, the phrase “adverse medical incident” means: “medical negligence,
intentional misconduct, and any other act, neglect, or default of a health care
facility or health care provider that caused or could have caused injury to or
death of a patient”. Art. X_ § 25(c)(3), Fla. Const. Thus, to fall into the
category of an adverse medical incident, the document at issue must
implicate some act, or omission, on the part of a health care provider.
Florida’s appellate courts recognize that documents, and/or portions of
documents, which do not describe an adverse medical incident are not
subject to production and, where applicable, also retain their privileged
status. See e.g. Brandon Regional Hospital v. Murray, 957 So. 2d 590 (Fla.
2007); West Florida Regional Medical Center v. See, 18 So. 3d 676 (Fla. 1*
DCA 2009); Baptist Hosp. of Miami, Inc. v. Garcia, 994 So. 2d 390 (Fla. 3d
DCA 2008); Bartow HMA vy. Kirkland, 171 So. 3d 783 (Fla. 2d DCA 2015);
Bartow HMA vy. Kirkland, 126 So. 2d 1247 (Fla. 2d DCA 2013); Morton
Plant Hosp. Association v. Shahbas, 960 So. 2d 820 (Fla. 2d DCA 2007).
See also §§395.0191(8), 395.0193(8), 395.0197(4), 395.0197(6)(a)(5),
395.0197(6)(c), 395.0197(8), 395.0197(13), 459.016(3), 766.101(5),
766.1016, Fla. Stat.Case No.: 50-2020-CA-014445-XX
A Hospital’s mere investigation or documentation of a matter does not, in
and of itself, deem that event an adverse medical incident. See Bartow,
supra. Likewise, the occurrence of an event or incident within a hospital
setting does not necessarily mean than an adverse medical incident has
occurred!!], Jd.
It is also of note that the Hospital is part of a federally certified Patient
Safety Organization. Thus, patient safety work product materials are
privileged, confidential and not subject to production per the P.S.Q.LA. of
2005 and 42 CFR Part 3. See 42 U.S.C. 299b-21--b26. The Hospital raises
this issue post-Charles so as to not waive same.
To the extent that the request seeks the Hospital to disclose the names of
committee review members contained within the requested documents, such
information is privileged and confidential and not subject to disclosure. See
§§395.0191(8), 395.0193(8), 395.0197(4), 395.0197(6)(a)(5),
395.0197(6)(c), 395.0197(8), 395.0197(13), 459.016(3), 766.101(5),
766.1016, Fla. Stat. See also Baptist Hospital of Miami v. Garcia, 994 So.
2d 390 (Fla. 3" DCA 2008) and Mount Sinai Medical Center v. Bernstein,
645 So. 2d 530 (Fla. 3d DCA 1994).
Without waiving any objections, the documents produced herewith are being
done so without waiving any objections including, but not limited to, those
based on discoverability, use and admissibility in any proceeding. Bauduy v.
Adventist Health, 288 So. 3d 87 (Fla. 5% DCA 2019), the following
documents are attached:
{ As noted, for example, in Bartow: “There are multiple reasons for conversion from the
laparoscopic method to the open method that do not arise from "medical negligence, intentional
misconduct, and any other act, neglect, or default of a health care facility or health care provider
that caused or could have caused injury to or death of a patient."Case No.: 50-2020-CA-014445-XX
7 page incident report dated October 17, 2020
5 page Incident report dated March 22, 2017
Adverse Incident Reports
9. Any and all incident reports related to JANE DOE.
RESPONSE: See response to #2 above.
11. Any and all internal risk management incident reports related to JANE DOE.
RESPONSE: See response to #2 above.
13. Any and all incident reports created in accordance with Florida Statutes Sect.
395.0197 related to JANE DOE.
RESPONSE: See Response to #2 above.
20. Any and all documents, not in the medical records, created by The Hospital, its
nurses, doctors, employees, agents or at the request of The Hospital regarding
JANE DOE prior to the receipt of the Notice of Intent in this case.
RESPONSE: See response to #2 above. Without waiving any objections
including, but not limited to, those based on discoverability, use and admissibilityCase No.: 50-2020-CA-014445-XX
in any proceeding. Bauduy v. Adventist Health, 288 So. 3d 87 (Fla. 5" DCA 2019),
see attached three page Report to Department of Health.
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to the attorneys listed on the
attached service list, by e-mail, on March 15, 2022.
FALK, WAAS, HERNANDEZ, SOLOMON,
MENDLESTEIN & DAVIS, P.A.
Attomeys for Defendant, Boca Raton
Regional Hospital, Inc. d/b/a Boca Raton
Regional Hospital
1900 Corporate Blvd NW, STE 210-E
Boca Raton, FL 33441
Telephone: 561-939-4938
Facsimile: 561-807-6633
By: Aas are Artonacci-/oltack
RoseMarie Antonacci-Pollock
Florida Bar No.: 509752Case No.: 50-2020-CA-014445-XX
SERVICE LIST
David J. Brevda, Esq.
Senior Justice Law Firm
7700 Congress Avenue
Suite 3216
Boca Raton, FL 33487
Telephone: (561) 717-0817
Facsimile:
Email: Eservice@SeniorJustice.com
Email: amanda@seniorjustice.com
Email:
Attorneys for Plaintiff, Jane Doe
Julie N. Pagni, Esq.
Pagni Law, PLLC
9510 Listow Terrace
Boynton Beach, FL 33472-2718
Telephone: (954) 817-3441
Facsimile:
Email: pagnilaw@gmail.com
Email: eservicepagnilaw@gmail.com
Email:
Attorneys for Defendant, Devon Briganti
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Filing # 145703998 E-Filed 03/15/2022 09:36:21 AM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA DIVISION - AF CASE NO.: 50-2020-CA-014445-XX JANE DOE,, Plaintiff, vs. BOCA RATON REGIONAL HOSPITAL, INC. d/b/a BOCA RATON REGIONAL HOSPITAL and DEVON BRIGANTL, Defendant. / DEFENDANT, BOCA RATON REGIONAL HOSPITAL, INC. D/B/A BOCA RATON REGIONAL HOSPITAL SUPPLEMENTAL RESPONSE TO PLAINTIFF’S REQUEST FOR PRODUCTION DATED NOVEMBER 24, 2021 The Defendant, BOCA RATON REGIONAL HOSPITAL, INC. D/B/A BOCA RATON REGIONAL HOSPITAL and files their Supplemental response to PLAINTIFF’S Request for Production dated NOVEMBER 24, 2021, and states as follows: 2. Pursuant to Amendment 7, any and all adverse incident report(s) created relating to JANE DOE. RESPONSE: 2231266 '** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 03/15/2022 09:36:21 AM ***Case No.: 50-2020-CA-014445-XX As a threshold matter, while patients/claimants take the position that Amendment 7 is limitless, this is not the case. The limits of Amendment 7 have been widely recognized by the language of the Amendment itself, as well as case law interpreting the amendment. See e.g. Brandon Regional Hospital v. Murray, 957 So. 2d 590 (Fla. 2007); West Florida Regional Medical Center v. See, 18 So. 3d 676 (Fla. 1 DCA 2009); Baptist Hosp. of Miami, Inc. v. Garcia, 994 So. 2d 390 (Fla. 3d DCA 2008); Bartow HMA vy. Kirkland, 171 So. 3d 783 (Fla. 2d DCA 2015); Bartow HMA v. Kirkland, 126 So. 2d 1247 (Fla. 2d DCA 2013); Morton Plant Hosp. Association v. Shahbas, 960 So. 2d 820 (Fla. 2d DCA 2007). To start, the phrase “adverse medical incident” means: “medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient”. Art. X_ § 25(c)(3), Fla. Const. Thus, to fall into the category of an adverse medical incident, the document at issue must implicate some act, or omission, on the part of a health care provider. Florida’s appellate courts recognize that documents, and/or portions of documents, which do not describe an adverse medical incident are not subject to production and, where applicable, also retain their privileged status. See e.g. Brandon Regional Hospital v. Murray, 957 So. 2d 590 (Fla. 2007); West Florida Regional Medical Center v. See, 18 So. 3d 676 (Fla. 1* DCA 2009); Baptist Hosp. of Miami, Inc. v. Garcia, 994 So. 2d 390 (Fla. 3d DCA 2008); Bartow HMA vy. Kirkland, 171 So. 3d 783 (Fla. 2d DCA 2015); Bartow HMA vy. Kirkland, 126 So. 2d 1247 (Fla. 2d DCA 2013); Morton Plant Hosp. Association v. Shahbas, 960 So. 2d 820 (Fla. 2d DCA 2007). See also §§395.0191(8), 395.0193(8), 395.0197(4), 395.0197(6)(a)(5), 395.0197(6)(c), 395.0197(8), 395.0197(13), 459.016(3), 766.101(5), 766.1016, Fla. Stat.Case No.: 50-2020-CA-014445-XX A Hospital’s mere investigation or documentation of a matter does not, in and of itself, deem that event an adverse medical incident. See Bartow, supra. Likewise, the occurrence of an event or incident within a hospital setting does not necessarily mean than an adverse medical incident has occurred!!], Jd. It is also of note that the Hospital is part of a federally certified Patient Safety Organization. Thus, patient safety work product materials are privileged, confidential and not subject to production per the P.S.Q.LA. of 2005 and 42 CFR Part 3. See 42 U.S.C. 299b-21--b26. The Hospital raises this issue post-Charles so as to not waive same. To the extent that the request seeks the Hospital to disclose the names of committee review members contained within the requested documents, such information is privileged and confidential and not subject to disclosure. See §§395.0191(8), 395.0193(8), 395.0197(4), 395.0197(6)(a)(5), 395.0197(6)(c), 395.0197(8), 395.0197(13), 459.016(3), 766.101(5), 766.1016, Fla. Stat. See also Baptist Hospital of Miami v. Garcia, 994 So. 2d 390 (Fla. 3" DCA 2008) and Mount Sinai Medical Center v. Bernstein, 645 So. 2d 530 (Fla. 3d DCA 1994). Without waiving any objections, the documents produced herewith are being done so without waiving any objections including, but not limited to, those based on discoverability, use and admissibility in any proceeding. Bauduy v. Adventist Health, 288 So. 3d 87 (Fla. 5% DCA 2019), the following documents are attached: { As noted, for example, in Bartow: “There are multiple reasons for conversion from the laparoscopic method to the open method that do not arise from "medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient."Case No.: 50-2020-CA-014445-XX 7 page incident report dated October 17, 2020 5 page Incident report dated March 22, 2017 Adverse Incident Reports 9. Any and all incident reports related to JANE DOE. RESPONSE: See response to #2 above. 11. Any and all internal risk management incident reports related to JANE DOE. RESPONSE: See response to #2 above. 13. Any and all incident reports created in accordance with Florida Statutes Sect. 395.0197 related to JANE DOE. RESPONSE: See Response to #2 above. 20. Any and all documents, not in the medical records, created by The Hospital, its nurses, doctors, employees, agents or at the request of The Hospital regarding JANE DOE prior to the receipt of the Notice of Intent in this case. RESPONSE: See response to #2 above. Without waiving any objections including, but not limited to, those based on discoverability, use and admissibilityCase No.: 50-2020-CA-014445-XX in any proceeding. Bauduy v. Adventist Health, 288 So. 3d 87 (Fla. 5" DCA 2019), see attached three page Report to Department of Health. CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to the attorneys listed on the attached service list, by e-mail, on March 15, 2022. FALK, WAAS, HERNANDEZ, SOLOMON, MENDLESTEIN & DAVIS, P.A. Attomeys for Defendant, Boca Raton Regional Hospital, Inc. d/b/a Boca Raton Regional Hospital 1900 Corporate Blvd NW, STE 210-E Boca Raton, FL 33441 Telephone: 561-939-4938 Facsimile: 561-807-6633 By: Aas are Artonacci-/oltack RoseMarie Antonacci-Pollock Florida Bar No.: 509752Case No.: 50-2020-CA-014445-XX SERVICE LIST David J. Brevda, Esq. Senior Justice Law Firm 7700 Congress Avenue Suite 3216 Boca Raton, FL 33487 Telephone: (561) 717-0817 Facsimile: Email: Eservice@SeniorJustice.com Email: amanda@seniorjustice.com Email: Attorneys for Plaintiff, Jane Doe Julie N. Pagni, Esq. Pagni Law, PLLC 9510 Listow Terrace Boynton Beach, FL 33472-2718 Telephone: (954) 817-3441 Facsimile: Email: pagnilaw@gmail.com Email: eservicepagnilaw@gmail.com Email: Attorneys for Defendant, Devon Briganti