Florida’s First District Court of Appeal issued its opinion in the highly watched case of Southern Baptist Hospital of Florida, Inc. v. Charles et al. The First District Court ruled that the federal Patient Safety and Quality Improvement Act of 2005 (PSQIA):
- Expressly preempts any broad discovery rights afforded under Florida’s Amendment 7 for documents meeting the definition of Patient Safety Work Product (PSWP), and;
- Impliedly preempts Amendment 7 because compliance with both federal and state law would be impossible.
The First District Court noted the Congressional intent to create a “culture of safety” is paramount to a “culture of blame.” The opinion establishes lines for what material is immune from discovery in healthcare litigation. Documents meeting the definition of patient safety work product under the PSQIA are “categorically protected and excluded from production.” In creating the Patient Safety Evaluation System (PSES) and the related patient safety organization (PSO), Congress sought to create an environment in which healthcare providers are able to discuss errors openly and learn from them. The PSO enables providers to share data without the threat of it being used against them. The First District Court addressed a potential conflict between Amendment 7, a 2004 Florida constitutional amendment, and the PSQIA. Amendment 7 was enacted to give access to records made or received in the course of business by a healthcare facility relating to any “adverse medical incident.” Amendment 7 had been interpreted by some Florida courts as allowing for discovery of materials sent by a provider to the PSO. In Charles, plaintiff claimed that a neurological injury occurred due to the hospital’s negligence. Plaintiff sent broad discovery under Amendment 7. In response to Charles’ Amendment 7 discovery requests, Baptist produced:
- Code 15 Reports that were required by state law, §395.0197(7), Florida Statutes;
- Annual Reports required by §395.0197(6), Florida Statutes;
- Two occurrence reports specific to Ms. Charles that had been extracted from Baptist’s patient safety evaluation system before they were reported to the PSO.
Charles sought other documents, primarily occurrence reports. While these reports were potentially responsive to the discovery request, Baptist refused, arguing they were not subject to production because of being privileged and confidential under the PSQIA. The trial court disagreed, finding that information was not PSWP if collected or maintained for a purpose other than submission to a PSO or for “dual purposes,” meaning for state reporting requirements including Amendment 7. In overruling the trial court, the First District Court found that the plain language of the PSQIA “clearly and unambiguously” defined PSWP. The appellate court also described what materials are not PSWP, including medical and billing records of a patient, and information that exists separately from a PSES. The First District Court concluded that the trial court had erroneously placed state law above federal law by focusing too much on state reporting and record keeping requirements. The Court stressed that if the Charles’ interpretation of the law was to be accepted, it would render the PSQIA a “dead letter” that would be contrary to the intent of Congress to “cultivate a culture of safety” for purposes of improving the healthcare community as a whole. Hospitals should be diligent to adequately protect PSWP. Failure to process, identify, and maintain materials as part of the PSES will cause the product to be discoverable. Providers should:
- Start at the beginning – is it PSWP?
- If so, the materials are protected;
- Data which has been extracted, however, loses the PSQIA shield and must be produced.
Counsel for Charles has until November 12, 2015, to move for rehearing and/or ask for certification to the Florida Supreme Court. For any questions about this blog or PSQIA protection, please contact the authors.