Last Thursday, September 5, 2019, Judge James Moody, Jr. of the United States District Court for the Middle District of Florida issued a positive ruling for hospitals dealing with patient safety organization (PSO) data. The opinion can be reviewed here. Note, while this decision is not binding on state courts, it is persuasive authority. It may be used to argue against the production of adverse incident materials.
Federal Judge Moody commented regarding some specific issues:
Subject Matter Jurisdiction
The Plaintiff, Tampa General Hospital (TGH), was facing daily monetary sanctions pursuant to federal law in a state court action if it knowingly disclosed patient safety data. The federal statutory penalty is expressed in mandatory terms in both the Patient Safety Act and the Administrative Rules. Since the U.S. Department of Health and Human Services (HHS) had refused to assure TGH it would not be penalized if TGH produced the Patient Safety Work Product (PSWP), the court had to act.
Both TGH and HHS agreed that the Patient Safety Act expressly preempts Florida Amendment 7. Judge Moody states that the language in the Patient Safety Act clearly is an express preemption clause. The key point, in this particular case, is that the documents that TGH maintained, were made for and submitted to, a PSO. They were therefore not subject to forced disclosure in the state court medical malpractice action.
The federal court addressed the Florida Supreme Court’s opinion in Charles v. S. Baptist Hosp. of Fla., Inc., 209 So. 3d 1199 (Fla. 2017). The distinct difference is that the documents in Charles had not been submitted to a PSO. Preemption therefore was not directly at issue. Continue Reading