Case Notes

The plaintiffs in Charles sued Southern Baptist Hospital, claiming that family member Marie Charles suffered a severe neurological injury while being treated there. They sought access to a number of records, but the hospital refused to turn most of them over, citing to the federal Patient Safety Act and Quality Improvement Act (PSA), which provides confidentiality for documents voluntarily given by health care providers to patient safety organizations. The purpose of the PSA is to encourage providers to disclose information about adverse events so that changes can be made to avoid similar incidents in future. However, the PSA clashes with a 2004 amendment to Florida's constitution — article X, section 25 (hereinafter, Amendment 7) — which specifically gives patients the right to access adverse medical incident reports.

The reports the Charles plaintiffs sought pertained not only to the care that Marie Charles received, but also to other adverse events at the hospital going back several years. The hospital produced some documents, but held others back, claiming they were privileged under the PSA. The plaintiffs successfully argued at the trial level that only documents produced solely for PSA purposes were privileged; all other reports of adverse medical incidents that were created or maintained in response to any other statutory, regulatory, licensing, or accreditation requirements were not protected from discovery under the PSA. The hospital appealed.

In the Appellate Courts

Florida's First District Court of Appeal reversed, finding that the adverse medical incident reports the Charles plaintiffs sought were confidential and privileged “patient safety work product” under the PSA, that Amendment 7 was pre-empted by the PSA, and that therefore the records were not subject to disclosure. Southern Baptist Hospital of Florida, Inc. v. Charles, 178 So. 3D 102 (Fla. 1st DCA 2015). Because that decision declared invalid a provision of the Florida State Constitution, the Supreme Court of Florida accepted mandatory jurisdiction over the appeal. See art. V, § 3(b)(1), Fla. Const. (The parties settled before Florida's Supreme Court could render its decision, but the court carried on with its review because the question presented was important to patients and health care providers alike, and it was one that would inevitably need answering.)

The Florida Supreme Court took the question up next, and sided with the Charles plaintiffs. The court based its reversal on the fact that the PSA specifically carves out from its definition of “patient safety work product” a number of things, including patient medical records and other information that is collected, maintained, or developed separately from a patient safety evaluation system. Florida law has long required medical providers to create and maintain adverse medical event reports — and these are not created for the purpose of providing them to a patient safety organization under the PSA. It is these types of records that are available to patients in accordance with Amendment 7 to the Florida State constitution, and the PSA does not affect that fact, said the court.

“[W]e hold that Congress did not intend to preempt state laws or Amendment 7 through the passage of the Federal Act [PSA] creating a voluntary reporting system. Rather, the clear intent of the Federal Act [PSA], as set forth in the actual language of the Federal Act [PSA], was for the voluntary reporting system to function harmoniously within existing state reporting and discovery laws” in order to improve the provision of health care, the court stated. “Moreover, health care providers should not be able to unilaterally decide which documents will be discoverable and which will not in medical malpractice cases” — a feat they could accomplish under the intermediate appellate court's ruling simply by placing any document they chose into the patient safety organization “file.”

On to the Supreme Court

In an amicus brief submitted to the Supreme Court by health care provider organizations, including the American Medical Association and the Florida Medical Association, the groups argue that the nation's high court should take up the Charles case because it will affect health care providers nationwide, “particularly those physician and hospital provider groups that are located in multiple states, depend upon a uniform and predictable privilege when collecting and reporting patient safety work product to PSOs [patient safety organizations].”

The Charles family's brief to the Supreme Court argues that the PSA “empowers a provider to unilaterally transform virtually any information — collected, maintained, or developed pursuant to a non-Patient Safety Act law — into privileged patient safety work product by simply reporting that information to the patient safety organization. This is an abuse of the federal privilege.”

Will the Court take the case and, if so, what will be its outcome? Many are waiting for the answers.

— Janice G. Inman

Privileged Records or Hidden Evidence?

The U.S. Supreme Court is deciding whether to consider the case of Southern Baptist Hospital of Florida v. Charles, which pits a plaintiff against a hospital in the ongoing battle over which documents are privileged as adverse event records for the improvement of quality of care, and which must be turned over to aggrieved patients and their families.

A Procedure Gone Wrong

The plaintiffs in Charles sued Southern Baptist Hospital, claiming that family member Marie Charles suffered a severe neurological injury while being treated there. They sought access to a number of records, but the hospital refused to turn most of them over, citing to the federal Patient Safety Act and Quality Improvement Act (PSA), which provides confidentiality for documents voluntarily given by health care providers to patient safety organizations. The purpose of the PSA is to encourage providers to disclose information about adverse events so that changes can be made to avoid similar incidents in future. However, the PSA clashes with a 2004 amendment to Florida's constitution — article X, section 25 (hereinafter, Amendment 7) — which specifically gives patients the right to access adverse medical incident reports.

The reports the Charles plaintiffs sought pertained not only to the care that Marie Charles received, but also to other adverse events at the hospital going back several years. The hospital produced some documents, but held others back, claiming they were privileged under the PSA. The plaintiffs successfully argued at the trial level that only documents produced solely for PSA purposes were privileged; all other reports of adverse medical incidents that were created or maintained in response to any other statutory, regulatory, licensing, or accreditation requirements were not protected from discovery under the PSA. The hospital appealed.

In the Appellate Courts

Florida's First District Court of Appeal reversed, finding that the adverse medical incident reports the Charles plaintiffs sought were confidential and privileged “patient safety work product” under the PSA, that Amendment 7 was pre-empted by the PSA, and that therefore the records were not subject to disclosure. Southern Baptist Hospital of Florida, Inc. v. Charles, 178 So. 3D 102 (Fla. 1st DCA 2015). Because that decision declared invalid a provision of the Florida State Constitution, the Supreme Court of Florida accepted mandatory jurisdiction over the appeal. See art. V, § 3(b)(1), Fla. Const. (The parties settled before Florida's Supreme Court could render its decision, but the court carried on with its review because the question presented was important to patients and health care providers alike, and it was one that would inevitably need answering.)

The Florida Supreme Court took the question up next, and sided with the Charles plaintiffs. The court based its reversal on the fact that the PSA specifically carves out from its definition of “patient safety work product” a number of things, including patient medical records and other information that is collected, maintained, or developed separately from a patient safety evaluation system. Florida law has long required medical providers to create and maintain adverse medical event reports — and these are not created for the purpose of providing them to a patient safety organization under the PSA. It is these types of records that are available to patients in accordance with Amendment 7 to the Florida State constitution, and the PSA does not affect that fact, said the court.

“[W]e hold that Congress did not intend to preempt state laws or Amendment 7 through the passage of the Federal Act [PSA] creating a voluntary reporting system. Rather, the clear intent of the Federal Act [PSA], as set forth in the actual language of the Federal Act [PSA], was for the voluntary reporting system to function harmoniously within existing state reporting and discovery laws” in order to improve the provision of health care, the court stated. “Moreover, health care providers should not be able to unilaterally decide which documents will be discoverable and which will not in medical malpractice cases” — a feat they could accomplish under the intermediate appellate court's ruling simply by placing any document they chose into the patient safety organization “file.”

On to the Supreme Court

In an amicus brief submitted to the Supreme Court by health care provider organizations, including the American Medical Association and the Florida Medical Association, the groups argue that the nation's high court should take up the Charles case because it will affect health care providers nationwide, “particularly those physician and hospital provider groups that are located in multiple states, depend upon a uniform and predictable privilege when collecting and reporting patient safety work product to PSOs [patient safety organizations].”

The Charles family's brief to the Supreme Court argues that the PSA “empowers a provider to unilaterally transform virtually any information — collected, maintained, or developed pursuant to a non-Patient Safety Act law — into privileged patient safety work product by simply reporting that information to the patient safety organization. This is an abuse of the federal privilege.”

Will the Court take the case and, if so, what will be its outcome? Many are waiting for the answers.

— Janice G. Inman