By: Timothy Wombles
In a recent case, Charles v. Southern Baptist Hospital of Florida, Inc., the Florida Supreme Court held that hospital and physician incident reports required by Florida law are not protected from discovery by the Federal Patient Safety and Quality Improvement Act (“PSQIA”) and Amendment 7 is not preempted by federal law.
Proposed by citizen initiative and adopted by constitutional amendment in 2004, Amendment 7, which continues to be called by its ballot designation, permits individuals to request adverse medical incident records from health care facilities or providers. Hospitals and physicians are required to create and maintain adverse medical incidents records by the Florida Statutes.
Congress passed the PSQIA in 2005 to “facilitate an environment in which health care providers are able to discuss errors openly and learn from them” in response to an Institute of Medicine report detailing the prevalence of medical errors and preventable deaths in the United States. The PSQIA specifies that reports regarding patient injuries, known as patient safety work product (“PSWP”), may be collected in a patient safety evaluation system to share with a patient safety organization. PSWP is confidential and protected from disclosure by the PSQIA. Alternatively, data collected or developed separately from a patient safety evaluation system is not PSWP.
In the case at hand, Jean Charles, Jr. filed a medical malpractice lawsuit on behalf of his sister against Southern Baptist Hospital of Florida (‘Southern Baptist”). Pursuant to Amendment 7, Charles sought adverse medical incident records from Southern Baptist. The Duval County Circuit Court found that incident reports and other records Charles requested were not PSWP since they were collected “for a purpose other than submission to a patient safety organization or for dual purposes” and granted orders compelling production of the records to Charles. Southern Baptist challenged the ruling by filing a writ of certiorari with the First District Court of Appeal. Granting the petition and quashing the circuit court’s orders, the First District Court of Appeal held that since Amendment 7 required the hospital to provide records protected from disclosure by the PSQIA, federal law preempted the Amendment 7 request.
The Florida Supreme Court reversed the appellate decision, agreeing with the circuit court compelling the hospital to produce the adverse medical incident records under Amendment 7. Southern Baptist created the adverse medical incident records to comply with Florida law, so the Court found that the records were created for a dual purpose. Since the adverse medical incident records were not created solely for submission to a patient safety organization, the records were excluded from PSWP. As records excluded from PSWP are not protected from disclosure by the PSQIA, the Supreme Court held that federal law did not preempt Amendment 7.
Florida hospitals and physicians should to be cognizant that records collected solely for reporting to a patient safety organization are protected from disclosure by the PSQIA. Records collected simultaneously for submission to a patient safety organization and any other purpose, even to comply with Florida law, fall outside of the discovery protections of the PSQIA.