On January 31, 2017, the Florida Supreme Court held that adverse medical incident reports produced in accordance with Florida law cannot constitute confidential and privileged patient safety work product (PSWP) under the federal Patient Safety & Quality Improvement Act of 2005 (PSQIA). In Jean Charles, Jr. et al. v. Southern Baptist Hospital of Florida, Inc. (No. SC15-2180), the Court endorsed a broad right of access under the Florida Constitution for patients to obtain adverse medical incident reports from health care facilities, a right commonly exercised by plaintiffs in medical malpractice actions.
In 2015, Florida’s First District Court of Appeal had concluded that certain adverse medical incident reports were protected PSWP under the PSQIA, and that the PSQIA preempted patients’ right of access under Article X, §25 of the Florida Constitution (that provision is commonly referred to as Amendment 7; see our previous analysis of the case here). Amendment 7 was passed in 2004, and in pertinent part it provides patients with “a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.”
The Florida Supreme Court rejected the appellate court’s statutory interpretation of the PSQIA and the conclusions drawn as a result. The Court emphasized that built in to the statutory definition of PSWP were “broad exemptions” carved out by Congress, and noted that Florida has “various statutes and rules… that require a health care provider to create and maintain adverse medical incident reports.” The Court then reasoned that “because providers have an independent obligation under Florida law to create and maintain [the records], and Amendment 7 provides patients with a constitutional right to access them,” the records in question do not become protected PSWP simply because they were placed in a patient safety evaluation system or submitted to a patient safety organization by the hospital.
The Court also held that the PSQIA recognizes and preserves–and does not preempt–external reporting obligations under state law. After quickly rejecting the conclusion that the PSQIA expressly preempts Amendment 7, the Court moved to determine whether Amendment 7 was impliedly preempted. The Court noted that Amendment 7 was enacted prior to the PSQIA, and represents a “citizen-initiated constitutional amendment.” Moreover, the Court noted that regulation of health care providers is “directly within the states’ traditional role of regulating the health, safety and welfare of its citizens” under the 10th Amendment to the U.S. Constitution. The Court then concluded that “It is antithetical to the idea of preemption… that the [PSQIA]… would preempt a state constitutional amendment.”
This decision indicates that there is likely to be continued conflict between State statutory and regulatory schemes and the PSQIA’s attempts to implement broad privilege and confidentiality protections of documents containing sensitive health and legal information.