A recent decision by the Florida Supreme Court has significant implications regarding certain adverse incident reports previously viewed as outside the scope of permitted discovery. Florida health care providers currently participating in the voluntary federal data sharing system established by the Federal Patient Safety and Quality Improvement Act of 2005 (the “Federal Act”) should be aware that even adverse incident reports reported solely to patient safety organizations are in fact discoverable, as the Florida Supreme Court determined that they are not patient safety work product under the Federal Act. The Court’s decision broadens access to adverse incident reports sought by plaintiffs and potential plaintiffs in claims of medical malpractice against health care providers in Florida.
Background and Holding
On January 31, 2017, the Florida Supreme Court reversed the holding by the First District Court of Appeal in Southern Baptist Hospital of Florida, Inc. v. Charles, 178 So. 3d 102 (Fla. 1st DCA 2015) concerning patients’ right to access certain incident reports generated by health care providers in Florida. Charles v. Southern Baptist Hospital of Florida, Inc., No. SC15-2180, 2017 WL 411333 (Fla. 2017). The issue on appeal was whether patient records regarding adverse medical incidents are privileged and confidential under the Federal Act so as to preempt article X, section 25, of the Constitution of Florida (“Amendment 7”) which allows patients access to such records. The 5-2 decision, authored by Judge Pariente, holds as follows:
We disagree with the First District both as to its statutory interpretation of the Federal Act and its resulting conclusion on preemption. We hold that the Federal Act 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, which set up a voluntary system for hospitals to improve patient safety. Moreover, the health care provider or facility . . . cannot shield documents not privileged under state law or the state constitution by virtue of its unilateral decision of where to place the documents under the voluntary reporting system created by the Federal Act. Id. at 1.
Amendment 7 was adopted in 2004 when over 80% of Florida voters cast ballots in favor of a ballot initiative known as the “Patient’s Right to Know About Adverse Medical Incidents.” The amendment gave patients the right to access any adverse medical incident records, including incidents related to other patients, created by health care providers such as hospitals. The following year, Congress passed the Federal Act, the stated purpose of which is to “facilitate an environment in which health care providers are able to discuss errors openly and learn from them,” by creating a voluntary, confidential and non-punitive system of data sharing of health care errors to facilitate improvements in the quality of medical care and patient safety. The Federal Act produced a Patient Safety Evaluation System (“PSES”) to collect and analyze data that participating health care providers send to their patient safety organizations (“PSOs”). The aggregate data is then made available as a resource for providers.
In the Charles medical malpractice case, the plaintiff claimed that his deceased sister suffered a neurological injury as a result of the hospital’s negligence and served broad discovery requests pursuant to Amendment 7 seeking, in part, occurrence reports specific to the patient. Id. at 3. The defendant hospital objected to discovery of the reports, and claimed that they were not subject to discovery as documents meeting the Federal Act’s definition of patient safety work product (“PSWP”) which are categorically protected and excluded from production. On Appeal, the First District held that the Federal Act expressly preempts any broad discovery rights afforded under Amendment 7 for PSWP documents, and that the Federal Act also impliedly preempts Amendment 7 since compliance with both the federal and state law is not possible. Following this reasoning, the First District found that the incident reports sought by the plaintiff fell within the Federal Act’s definition of PSWP, and were thus protected from discovery.
In rejecting the First District’s holding, the Court agreed with the plaintiff’s reasoning that the Federal Act was not meant to preempt state requirements for the disclosure of information to patients and potential patients, and “expressly preserves and incorporates, rather than preempts, a provider’s reporting and recordkeeping obligations under state law.” Id. at 7-8. The decision explains that:
“[s]imply put, 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. Thus, they fall within the exception for information “collected, maintained or developed separately, or exists separately, from a patient safety evaluation system . . . Consequently, adverse medical incident reports produced in conformity with state law and requested by patients under Amendment 7 cannot be classified as confidential and privileged patient safety work product under the Federal Act.” Id. at 8-9.
Finding that the First District based its holding on an “erroneous interpretation of the definition of patient safety work product,” the Florida Supreme Court explained that the Federal Act does not expressly preempt Amendment 7. Id. at 10. The Court cited additional support for this finding in the legislative history for the Federal Act, which showed that Congress did not intend to “replace or destroy existing state laws and requirements” related to adverse incidents. Id. at 11. The Court concluded that the “intent of the Federal Act . . . was for the voluntary reporting system to function harmoniously within existing state reporting and discovery laws.” Id. at 13.
Dissent and Related Cases
Justice Canady penned a short dissent, calling the majority’s decision “purely advisory,” due to the filing of a stipulation for dismissal by the parties on the eve of Oral Argument. Id. at 13-14. As the majority opinion explains in the footnote, the Court rejected the parties’ stipulation for dismissal as the case involved an issue of statewide importance as well as the question of whether Amendment 7 was preempted by federal law. Though not mentioned by the Florida Supreme Court decision, notably, an unpublished order issued by the Fourth District Court of Appeal in 2016 ran counter to the decision by the First District Court of Appeal in Charles.
Additionally, a decision similar to the Florida Supreme Court’s holding was reached by the Kentucky Supreme Court in the 2016 case of Baptist Health Richmond, Inc. v. Clouse, 497 S.W. 3d 759 (Ky. 2016). The United States Supreme Court has requested that the solicitor general weigh in on whether the Court should take up the Kentucky hospital’s petition for certiorari. Florida and Kentucky are currently the only states in which the highest court has decided this issue.
Looking forward, Florida health care providers will no longer be able to selectively protect documents from discovery that are not privileged under state law or the state constitution by placing them in the PSES. The holding sets up broad access to adverse incident reports not just for medical malpractice plaintiffs that have already filed lawsuits, but also for potential patients. The decision will likely have a significant impact in ongoing and future medical malpractice claims in Florida, particularly for allegations of negligent credentialing. For instance, the ruling has potential to aid patients in showing that a hospital or other health care provider had knowledge of a physician being sued regularly or that similar adverse events were common at the facility. Health care providers, especially hospitals, who participate in the PSES should review their policies and procedures related to adverse incident reports pursuant to state law, and assess how the Court’s decision may impact their liability in ongoing and potential medical malpractice claims against the provider.