On January 31, 2017, the Supreme Court of Florida issued an opinion regarding the interplay of Amendment 7 (Art. X, § 25, Fla. Const.) and the Federal Patient Safety and Quality Improvement Act (42 U.S.C. §§ 299b-21 to 26) (“FPSQIA”). This decision is of extreme importance to the health care industry in Florida as it will significantly impact the peer review activities of hospitals and other health care providers within the state.
In pertinent part, Amendment 7 provides patients “a right to have access to any records made or received in the course of business by a health care facility or provider relating any adverse medical incident.” Under Amendment 7, an adverse medical incident includes “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 . . . .” The FPSQIA creates a voluntary, confidential system for the sharing of health care errors with the intent of improving the quality of medical care and patient safety. To encourage participation, the FPSQIA incorporates a privilege which protects from discovery in legal proceedings any “patient safety work product” which is actually reported to a “patient safety organization” under the act.
In this case, Charles initiated a medical malpractice action against Southern Baptist. As part of that action and pursuant to Amendment 7, Charles sought from Southern Baptist copies of certain “occurrence reports” which consisted of reports of events that were not consistent with the routine operations of the hospital, were not consistent with the routine care of a patient, or could result in an injury. Citing to the above-referenced privilege provision of the FPSQIA, Southern Baptist argued that the FPSQIA preempted Amendment 7 and that the occurrence reports requested by Charles did not have to be produced since they constituted privileged and confidential “patient safety work product” under the FPSQIA.
After analyzing both the FPSQIA and Amendment 7, the Court noted that “adverse medical incident reports are not patient safety work product because Florida statutes and administrative rules require providers to create and maintain these records and Amendment 7 provides patients with a constitutional right to access these records.” The Court then held that the FPSQIA “was never intended as a shield to the production of documents required by Amendment 7 and other provisions of Florida law, and Amendment 7 and other provisions of Florida law are not preempted by the Federal Act . . . .”
Accordingly, the Court determined that Southern Baptist and other health care providers cannot shield documents which are not otherwise privileged under state law or the state constitution by voluntarily placing the documents within the reporting system created by the FPSQIA.
Case Information: Charles v. S. Baptist Hosp. of Fla., Inc., No. SC15-2180 (Fla. Jan. 31, 2017).
Denay Brown, Esq.