Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: CIVIL PROCEDURE – Discovery – certiorari review is appropriate as there is no adequate remedy once private and confidential documents are disclosed – Administrative Law Judge departed from the essential requirements of law in denying the request of the City and the Office of the Medical Director for a protective order – Florida Statutes, section 401.425(5), states that investigations of a committee providing quality assurance are not subject to discovery – exception is the discovery of those matters within one’s personal knowledge – subpoenas issued by Vaughn should have been limited to material related to personal knowledge - Petition granted.  Pinellas County Emergency Medical Services, et. al. v. Vaughn, Appeal No. 06-0080AP-88B (Fla. 6th Cir. App. Ct. Sept. 11, 2007).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

PINELLAS COUNTY EMERGENCY MEDICAL

SERVICES, OFFICE OF THE MEDICAL DIRECTOR,

and CITY OF CLEARWATER,

                        Petitioners,

 

vs.                                                                                                Appeal No.06-0080AP-88B

                                                                                                    UCN522006AP000080XXXXCV

 

DWAYNE C. VAUGHN,

                        Respondent.

____________________________________/

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, filed by the Petitioner, Pinellas County Emergency Medical Services, Officer of the Medical Director (OMD), and joined by the City of Clearwater (City), seeking review of the Order Denying Motion to Limit Subpoenas and for Protective Order, entered on October 2, 2006.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The underlying case arises out of an incident occurring shortly before midnight, on April 5, 2006, wherein the Respondent, Dwayne C. Vaughn (Vaughn), of the Clearwater Fire and Rescue,[1] responded to a 911 call for emergency medical assistance with a disruptive thirty-five year old male at a Clearwater Beach motel.  When Vaughn and his partner arrived, the disruptive male (hereinafter referred to as “Patient”) had already been subdued by police after the use of multiple “tasers.”  Shortly after their arrival, the Patient went into cardiac arrest.  When Vaughn and his partner attempted to connect the Patient to the cardiac monitor, the original battery and the spare battery were inoperable.[2]  Manual cardiac and pulmonary resuscitation were commenced.  A second spare battery was brought to the scene by Vaughn’s shift supervisor and the cardiac monitor was reconnected to the Patient.  The Patient was transferred to a local hospital where he was pronounced dead shortly after midnight on April 6, 2006.  According to the autopsy report, the cause of death was found to be a “homicide with a cause of death of asphyxia.”

Vaughn notified his supervisors of the equipment failure and was then interviewed by multiple City employees and police detectives.[3]  On April 5, 2006, Vaughn was notified by the OMD that he was being investigated by the OMD’s Quality Assurance Review Committee (QAR Committee), # 06-174.  On April 17, 2006, Vaughn was suspended from clinical duties pending the outcome of the investigation.  On June 13, 2006, the OMD’s Medical Director, Dr. Laurie Romig, notified Vaughn that his paramedic and EMT certifications in Pinellas County were being permanently revoked for “falsification or inappropriate alteration of EMS records” in violation of the Rules and Regulations of the Pinellas County Emergency Medical Services System (Rules and Regulations).  Vaughn was then terminated from his employment.

Vaughn appealed his termination to the State of Florida, Division of Administrative Hearings.  Litigation commenced and, on September 11, 2006, the City filed its Motion to Limit Subpoenas and for Protective Order as a result of the subpoenas Vaughn issued to depose Jamie D. Geer, Clearwater Fire Chief, and Jean-Pierre B. Medani, Assistant Fire Chief.  The City asserted that the subpoenas should be limited, arguing “[t]he topics of questioning at the depositions may involve areas which are either not subject to discovery pursuant to Florida Statutes Section 401.025(5) or are beyond the scope of discovery as set forth in Florida Rule of Civil Procedure 1.280(b) and Florida Administrative Code Rule 28-106.206.” 

The OMD then filed, on September 19, 2006, a Brief in Support of the City’s Motion for Protective Order wherein the OMD sought a broader protective order, to wit: “(1) an order protecting from discovery all documents and information produced and/or obtained by the Petitioner during its Quality Assurance Review (“QAR”); and (2) an order excluding from evidence at the hearing, any testimony relating to matters produced and/or presented during the QAR proceedings.”  As did the City, the OMD cited to Florida Statutes, section 401.425, in support of its request.  Vaughn filed his Response, presenting several rebuttal arguments:  (1) the statutory privilege in section 401.425 does not apply as the investigative committees involved in Vaughn’s termination were not committees as defined by statute; (2)  the statute does not protect external sources of information; or, (3) to the extent that the statutory privilege did apply, it was waived by voluntary disclosure. 

On October 2, 2006, the ALJ entered the Order Denying Motion to Limit Subpoenas and for Protective Order (Order), denying the City’s Motion for Protective Order.  The one-page Order does not set forth any findings, nor put any limitations of the anticipated depositions of the City’s Fire Chief and Assistant Fire Chief.  The OMD, later joined by the City, filed its Petition for Writ of Certiorari before this Court seeking to quash the decision of the ALJ.

            The issue raised before this Court is whether the ALJ departed from the essential requirements of law in denying the request of the City and OMD for a protective order.  Initially, the Court finds that certiorari review is appropriate in this case as there is no adequate remedy once private and confidential documents are disclosed.  See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1100 (Fla. 1987)(recognizing that certiorari review is appropriate to evaluate orders related to “cat out of the bag” material); National Convenience Stores, Inc. v. Embrey, 375 So.2d 358, 359 (Fla. 4th DCA 1979)(providing that certiorari will lie to review an abuse of discretion in discovery matters where irreparable injury will accrue). 

In reviewing the primary issue, Florida Statutes, section 401.425(5), states, in part: 

The investigations, proceedings, and records of a committee providing quality assurance activities as described in subsections (1)-(4) shall not be subject to discovery or introduction into evidence in any civil action or disciplinary proceeding by the department or employing agency arising out of matters which are the subject of evaluation and review by the committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action or disciplinary proceeding as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, or other actions of such committee or any members thereof.  However, information, documents, or records provided to the committee from sources external to the committee are not immune from discovery or use in any such civil action or disciplinary proceeding merely because they were presented during proceedings of such committee nor should any person who testifies before a committee or who is a member of such committee be prevented from testifying as to matters within the person’s knowledge, but, such witness shall not be asked about his or her testimony before a committee or information obtained from or opinions formed by him or her as a result of participating in activities conducted by a  committee.   

 

            The OMD’s Rules and Regulations track the language of Section 401.  Rule XII, Quality Assurance, establishes a Quality Assurance Committee pursuant to F.S. 401, in subsection A., and further states, in subsection D.6., that “[a]ll activities of the Quality Assurance Committee are under the auspices of QAR activities as described in F.S. 401 and are protected from discoverability.”  Immediately preceding D.6., the Rules and Regulations address review of quality assurance activities and discipline.  Rule XIII, Medical Review Hearings for Due Process, establishes the inquiry and investigation procedures to be used when the OMG determines that corrective action is necessary following a complaint.

The Court finds that the ALJ departed from the essential requirements of law in denying the request by the City and the OMD to limit the subpoenas of the Clearwater Fire Chief, Jamie D. Geer, and the Assistant Fire Chief, Jean-Pierre B. Medani.  As a paramedic and EMT employed by the OMD, the investigation leading up to Vaughn’s termination is a disciplinary process that is subject to the confidentiality of the QAR process.  Without the need to resort to statutory construction, the Court finds that the plain language of section 401.425 restricts discovery of testimony and evidence produced as a result of such an investigation.  See e.g. Baker v. State, 636 So.2d 1342, 1343 (Fla. 1994)(stating that “[i]t is well established that construction and interpretation of a statute are unnecessary when it is unambiguous”); see also Gallagher v. Manatee County, 927 So.2d 914, 919 (Fla. 2d DCA 2006)(explaining that a statute’s plain and ordinary meaning must control unless this leads to an unreasonable result or a result clearly contrary to legislative intent). 

However, section 401.425(5), does provide that Vaughn can depose Mr. Geer and Mr. Medani about their personal knowledge and that any documents or information that Mr. Geer and Mr. Medani may have provided to the committee from external sources is subject to discovery.  The ALJ erred in not clarifying that the subpoenas had to be limited to such material.  While there is no case law on point interpreting section 401.425, support for this conclusion can be found in case law interpreting section 766.101(5), which contains similar language to section 401.425(5).  As discussed in Bayfront Medical Center, Inc. v. Agency for Healthcare Administration, 741 So.2d 1226, 1229 (Fla. 2d DCA 1999), and the cases cited therein, Florida courts have consistently construed the privilege and confidentiality of “peer review” type records in the broadest manner to protect the integrity of the process.  See also Brandon Regional Hospital v. Murray, 957 So.2d 590, 592-93 (Fla. 2007)(explaining the uniform application in Florida case law in denying the discovery of documents created by a peer review committee under section 766.101); Holly v. Auld, 450 So.2d 217, 220 (Fla. 1984).  Lastly, the Court finds no support for Vaughn’s argument that the OMD and City waived the confidentiality safeguards of section 410.425(5).

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Order Denying Motion to Limit Subpoenas and for Protective Order is quashed.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ______ of September 2007.

 

                                                         ________________________________

                                                         DAVID A. DEMERS

                                                         Circuit Judge, Appellate Division

 

 

 

 

 

______________________________                        ______________________________

AMY M. WILLIAMS                                              PETER RAMSBERGER

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division

Copies furnished to:

Dawn Siler-Nixon, Esquire

Kelly Hagan Chanfrau

101 East Kennedy Blvd., Suite 900

Tampa, FL  33602

 

Leslie K. Dougall-Sides, Esquire

City of Clearwater

Post Office Box 4748

Clearwater, FL  33758

 

Cynthia A. Mikos, Esquire

2018 East 4th Avenue

Tampa, FL  33605-5216



[1] Up until his termination, Vaughn had been employed full-time with the Clearwater Fire and Rescue, first as a fire fighter and, since 1986, as a paramedic.

[2] It was later determined that the batteries were dead because the cardiac monitor had been left on for approximately 3 hours following a previous 911 call on the same evening.

[3] As in this Petition, the City was permitted to intervene in the employment action below.