AMENDMENT 7 PRODUCTION AND FEDERAL PREEMPTION

Published November 2017
by Ted Babbit

In Charles v Southern Baptist Hospital, 209 So. 3d 119 (Fla. 2017), the Florida Supreme Court decided the issue of whether the Federal Patient Safety and Quality Improvement Act preempts the Amendment 7 production of adverse medical incidents.  The First District Court of Appeal in Southern Baptist Hospital, Inc. v Charles, 178 So. 3d 102 (Fla. 1st DCA 2015) concluded that adverse medical incident reports requested pursuant to Amendment 7 of the Florida Constitution constituted “patient safety work product” pursuant to the above Federal Act.  The Florida Supreme Court took jurisdiction based upon the provision of the Florida Constitution which allows it to review any decision declaring invalid a state statute or a provision of the state constitution and reversed the First District based on a statutory interpretation of the Federal Act and the resulting conclusion on preemption.  The Supreme Court held that the Federal Act was never intended as a shield to the production of documents required by Amendment 7.

The Federal Patient Safety and Quality Improvement Act for 2005 created a voluntary system of data sharing of health care errors for the purpose of improving patient safety.  This Act created confidentiality of the information reported in order to make sure the providers felt comfortable sharing data.  The lower court held that the information reported under the Federal Act was not privileged and required it’s production.  The First District granted a petition for writ of certiorari and held that the documents met the definition of patient safety work product because they were placed in the hospital’s patient safety evaluation system and thus the plain language of the Federal Act prohibited their production and were privileged, confidential and not discoverable.  The First District also held that under the supremacy clause of the United States Constitution, the Federal Act preempted any discovery rights under Amendment 7.

The Supreme Court read the Federal Act differently and pointed out that Congress had carved out broad exceptions that did not include information that was collected or existed separately from the patient’s safety evaluation system.  The Florida Supreme Court held that health care providers were required by Florida State law to keep adverse medical incident reports and that patients had a right to access adverse medical incident reports under the Florida Constitution.  The Supreme Court, therefore, held that the First District reading of the Act was in error.  At Page 1211 the Supreme Court held:

Simply 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 of information “collected, maintained,

or developed separately, or exists separately,

from a patient safety evaluation system.”

See id. § 299b-21(7)(B)(ii).  In addition, their

disclosure fits squarely within the providers’

recordkeeping obligations under state law.

Id. § 299b-21 (7)(B)(iii).

 

The Supreme Court concluded that hospital records do not become patient safety work product just because a hospital voluntarily places them in a patient safety evaluation system under the Federal Act.  Medical care providers have an independent obligation under Florida law to create and maintain these records and Amendment 7 gives patients a constitutional right to discover them.  Thus, adverse medical incident reports are discoverable under Amendment 7 and do not constitute Federal Safety Work Product under the Federal Act.

The Court also concluded that the Federal Act does not preempt state law as embodied in Amendment 7.  At page 1214 the Court held:

It is antithetical to the idea of preemption,

which requires a clear expression of

Congressional intent, that the Federal Act,

which permits, but does not require

provider participation, would preempt a

state constitutional amendment.  In the

context of the Federal Act’s scheme allowing

for voluntary participation, it is clear that

a mandatory disclosure law in our state

constitution is not preempted by a health

care provider’s choice to participate in

the Federal Act, coupled with its choice to

place documents into a patient safety

evaluation system.  (Emphasis in original).

 

Thus, the Florida Supreme Court has held that the Federal Patient Safety Quality Improvement Act does not shield documents otherwise discoverable under Amendment 7 nor does that Act preempt the application of Amendment 7.

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