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First District Rules on Production of Incident Reports in Nursing Home Case

The First District handed down a decision  confirming that production of nursing home incident reports was appropriate when the plaintiff met the two-prong test to overcome the work product privilege.  Oddly enough, there was no discussion of the application of the nursing home-specific incident report production standards set forth in Florida Statute Chapter 400.  The case is Paradise Pines Health Care Associates d/b/a Harts Harbor Health Care v. Estate of Bettye Jean Benekin (Hawkes, Kahn, Clark).

We are provided few details of the underlying claim or the information sought.  If we’re interpreting the decision correctly, the resident suffered from dementia and died — thus, the plaintiff and counsel could not obtain information — presumably about accident(s) or condition(s) — from the resident.  The incident reports in question therefore appear to specifically involve or relate to the parties; this does not appear to be a situation where a nursing home plaintiff is seeking production of incident reports for other residents.

Also worth noting, the opinion reported that names of employees and other witnesses were only available on the incident reports.  The Panel informs us that there was “no serious argument has been made that the incident reports at issue do not contain relevant information that the [plaintiff] need.”  Under Rule 1.280(b)(3), the court then held that the only issue was the second prong: undue hardship.

In interpreting that second step, the split panel concluded, “ [t]o determine whether a moving party will experience undue hardship, courts must balance the moving party’s burden in obtaining information with the non-moving party’s burden of production. Here the trial court determined the [plaintiff] had no realistic way to independently procure the information and the [defendant] had the incident reports at their immediate disposal.”

Under this analysis, once a defendant essentially forfeits the first prong of the privilege, the remaining analysis is a battle-of-hardship, where, if the defendant actually has the documents, their “hardship” in handing over incident reports is likely marginal at best.

Some deeper case-specific analysis may be warranted but it seems that the defendant may have been able to avoid this dispute by simply identifying personnel who were present/witnessed the events in question.  The plaintiff would then depose those individuals but the actual incident report(s) would remain privileged.  Shielding the identity of the only witnesses behind a privilege seems like a scenario where a court might reasonably conclude that the requesting party has no other recourse but to obtain the privileged documentation.

If the analysis in the opinion holds, the plaintiff might still be entitled to the incident reports even if they receive the names of witnesses since taking depositions of witnesses is likely more of a “hardship” than receiving an incident report (as the court put it, “[the trial judge] determined the burden faced by the [plaintiff] was unduly difficult in comparison to the ease with which the defendant could produce the reports.”).

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