Florida Court of Appeal Says Federal Law Preempts Florida's Amendment 7; The Peer Review Privilege May Still Be Alive

Tuesday, December 1, 2015
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Southern Baptist Hospital of Florida Inc. (Baptist) filed a Petition for Writ of Certiorari with the First District Court of Appeal in Florida following a Florida circuit court ruling on the compelled disclosure of certain documents.  The plaintiffs in a medical malpractice case were attempting to obtain peer review documents from the hospital on their claims.  Florida's Amendment 7 says that a patient has the right to obtain such documents relating to adverse medical incidents, even if they would otherwise be privileged.  However, the hospital argued that a fairly recent federal law applied, superceding the state law, and the documents still remained privileged, protected from release to the plaintiffs.  Even still, the circuit court agreed with the plaintiffs' position.  It issued a series of three orders unfavorable to Baptist, compelling disclosure of the previously requested peer review documents under Florida's Amendment 7.

The circuit court held that according to Amendment 7 (otherwise known as Article X, Section 25 of the Florida Constitution), information is not considered "patient safety work product" (PSWP) pursuant to the federal Patient Safety and Quality Improvement Act of 2005 ("Act") if it is collected for "dual purposes," or any purpose other than submission to a patient safety organization (PSO).  The circuit court further held that this was true even if the information was collected in a patient safety evaluation (PSE) system for submission to a PSO and such information was nonexistent outside of the PSE system.  

Ultimately, the circuit court found that "all reports of adverse medical incidents, as defined by Amendment 7, which are created, or maintained pursuant to any statutory, regulatory, licensing, or accreditation requirements are not protected from discovery under [the Act]."  S. Baptist Hosp. of Fla., Inc. v. Charles, No. 1D15-0109 at 8 (Fla. App., Oct. 28, 2015).  

Baptist argued in its petition for certiorari review that the circuit court's ruling contradicted the plain language of the federal law and undermined the federal policies intended to be advanced by Congress in the creation of the law.  

Read one of our previous blogs for more information on Amendment 7 and its ongoing controversy. 

Legislative Intent: The Plain Language of the Federal Act.

The district court directed the litigants to Krause v. Textron Fin. Corp., 59 So. 3d 1085, 1089 (Fla. 2011), in establishing the legislative intent behind the federal Act.  "To discern legislative intent, we first look to the statute's plain language."  Id. 1089.  (quoting Borden v. E.-European Ins. Co., 921 So.2d 587, 595 (Fla.2006)).  "When the statute is clear and unambiguous, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning."  Id. 1089 (quoting Saleeby v. Rocky Elson Constr., Inc., 3 So.3d 1078, 1082 (Fla.2009)) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)).

The district court found that the Act "clearly and unambiguously" defines PSWP.  The definition is as follows:

"Except as provided in subparagraph (B), the term 'patient safety work product' means any data, reports, records, memoranda, analyses (such as root cause analyses), or written or oral statements—

    (i) which—

        (I) are assembled or developed by a provider for reporting to a patient safety organization and are reported to a patient safety organization; or

        (II) are developed by a patient safety organization for the conduct of patient safety activities;

        and which could result in improved patient safety, health care quality, or health care outcomes; or

        (ii) which identify or constitute the deliberations or analysis of, or identify the fact of reporting pursuant to, a patient safety evaluation system."  Section 299b-21(7)(A), 42 United States Code.

The Act also specifically defines what information is not protected as PSWP under the law at Section 299b-21(7)(B)(i)-(ii).  Included in this are original patient records and information collected and maintained outside of the PSE system. 

The Key Section of the Federal Act at Issue.

Section 299b-21(7)(B)(iii) of the federal law at issue is the catalyst to the debate in this case.  Subpart (iii) fueled the respondents' stance on the "dual purpose" of the documents to be compelled.  The respondents argued that because some of this information may serve the notorious "dual purpose" they may also be required under a state statute, rule, licensing provision or accreditation requirement per the non-limitations purpose of the subpart.  This would essentially negate the PSWP status and remove the protection provided by the federal law.  

However, the district court held that the respondents and the circuit court are "incorrectly [imposing] additional terms into the definition of PSWP."  S. Baptist Hosp. of Fla., Inc. v. Charles, No. 1D15-0109 at 13 (Fla. App., Oct. 28, 2015).  The district court found that nothing in the federal law prohibits information from acting simultaneously as PSWP and a state reporting requirement. 

The Federal Act Versus Florida's Amendment 7.

The district court ruled in favor of the federal Act and Amendment 7 took the boot in this case.  The district court found that the plain language of the Act is clear and that the documents sought to be compelled met the Act's definition of PSWP and are therefore protected from disclosure.  As a result, the district court ultimately held, "While Amendment 7 can provide a litigant with broad access to records relating to 'adverse medical incidents,' we find it has been preempted by the Act."  Id. at 17.

To read the full case law, click here.

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Section 299b-21(7), 42 United States Code

S. Baptist Hosp. of Fla., Inc. v. Charles, No. 1D15-0109 (Fla. App., Oct. 28, 2015)

About the Author:
George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida area.  www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Florida health attorney, Florida Amendment 7, peer review confidentiality, patient's right to know, DOH investigations, adverse medical incidents, quality of care evaluations, patient safety, health law attorney, Florida health lawyer, medical malpractice investigations, The Health Law Firm, health law defense lawyer, negligent health care, corporate health care attorney, hospital records review, privileged information, disclosure requirements, lawful discovery, health professional attorney, medical malpractice attorney, Patient Safety and Quality Improvement Act of 2005, patient safety work product PSWP, patient safety evaluation (PSE) system, patient safety organization (PSO), federal law attorney, protected health care records

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