Charles v. S. Baptist Hosp. of Fla., Inc.

• Decision Date: 31 January 2017
• Docket Number: No. SC15–2180,SC15–2180
• Citation: 209 So.3d 1199
• Parties: Jean CHARLES, Jr., etc., et al., Appellants, v. SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., etc., et al., Appellees.
• Court: Florida Supreme Court

209 So.3d 1199

Jean CHARLES, Jr., etc., et al., Appellants,

v.SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., etc., et al., Appellees.

No. SC15–2180

Supreme Court of Florida.

[January 31, 2017]

Bryan Scott Gowdy of Creed & Gowdy, P.A., Jacksonville, Florida, for Appellants

George N. Meros, Jr. and Andre Velosy Bardos of Gray Robinson, P.A., Tallahassee, Florida; William Everett Kuntz, Michael Houston Harmon, and Earl Edwin Googe, Jr. of Smith Hulsey & Busey, Jacksonville, Florida; and Jack E. Holt, III of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, Florida, for Appellee

George Alexander Vaka, Nancy Ann Lauten, and Richard N. Asfar of the Vaka Law Group, P.L., Tampa, Florida; and Maame Gyamfi, AARP Foundation Litigation, Washington, District of Columbia, for Amicus Curiae AARP

Philip Mead Burlington of Burlington & Rockenbach, P.A., West Palm Beach, Florida, for Amicus Curiae Florida Justice Association

Christopher Vincent Carlyle of The Carlyle Appellate Law Firm, The Villages, Florida, for Amicus Curiae Florida Consumer Action Network

Katherine Eastmoore Giddings and Kristen Marie Fiore of Akerman LLP, Tallahassee, Florida; Kirk Stuart Davis of Akerman LLP, Tampa, Florida; and Kathleen T. Pankau, Senior Legal Counsel, The Joint Commission, Oakbrook Terrace, Illinois, for Amicus Curiae The Joint Commission on the Accreditation of Healthcare Organizations

Joshua Paul Welsh of Bush Ross, P.A., Tampa, Florida; and Michael R. Callahan of Katten Muchin Rosenman LLP, Chicago, Illinois, for Amici Curiae American Medical Association and the Florida Medical Association (the "Association Amici"); Clarity PSO, Vizient PSO, California Hospital Patient Safety Organization, CHS PSO, LLC, The PSO Advisory, LLC, Society of NeuroInterventional Surgery PSO, QA to QI LLC, Pascal Metrics, Inc., MEDNAX PSO, LLC, Child Health Patient Safety Organization, Inc., Missouri Center for Patient Safety, NC Quality Center PSO, American Data Network PSO, ECRI Institute PSO, Strategic Radiology Patient Safety Organization LLC, Ascension Health Patient Safety Organization, Quantros Patient Safety Center, Quality Circle for Healthcare, Inc., PsychSafe, UHS Acute Care PSO, Midwest Alliance for Patient Safety, Alliance for Patient Medication Safety, American Medical Foundation Patient Safety Organization, Center for the Assessment of Radiological Sciences PSO, and MCIC Vermont PSO (the "PSO Amici"); and IASIS Healthcare LLC, Florida Health Sciences Center, Inc. d/b/a Tampa General Hospital, Crestview Hospital Corporation, Lake Wales Hospital Corporation, Manatee Memorial Hospital, L.P., La Amistad Residential Treatment Center, LLC, and Adventist Health System/Sunbelt, Inc. (the "Provider Amici")

Andrew Steven Bolin of Beytin, McLaughlin, McLaughlin, O'Hara, Bocchino & Bolin, Tampa, Florida, for Amici Curiae The Patient Safety Organization of Florida and ECRI Institute PSO

Elizabeth Joy Campbell of Locke Lord LLP, West Palm Beach, Florida; and

Paul E. Dwyer of Locke Lord LLP, Providence, Rhode Island, for Amicus Curiae The Alliance for Quality Improvement and Patient Safety, Inc.

PARIENTE, J.

The important constitutional issue at the heart of this dispute is whether the records that patients in this State have a right to access under article X, section 25, of the Florida Constitution ("Amendment 7"), specifically records relating to "adverse medical incidents," are privileged and confidential under the Federal Patient Safety and Quality Improvement Act ("the Federal Act"),¹ such that Amendment 7 has been preempted by federal law. The First District Court of Appeal, in Southern Baptist Hospital of Florida, Inc. v. Charles , 178 So.3d 102 (Fla. 1st DCA 2015), concluded that adverse medical incident reports requested by the Appellants pursuant to Amendment 7 in the Appellants' medical malpractice action constituted privileged and confidential "patient safety work product," pursuant to the Federal Act and that the Federal Act preempted Amendment 7. Id. at 108–10. We accepted this appeal under our mandatory jurisdiction of appeals from a decision of a district court of appeal "declaring invalid a state statute or a provision of the state constitution." See art. V, § 3(b)(1), Fla. Const.²

We disagree with the First District both as to its statutory interpretation of the Federal Act and its resulting conclusion on preemption. We hold that the Federal Act was never intended as a shield to the production of documents required by Amendment 7 and other provisions of Florida law, and Amendment 7 and other provisions of Florida law are not preempted by the Federal Act, which set up a voluntary system for hospitals to improve patient safety. Moreover, the health care provider or facility, in this case Southern Baptist Hospital of Florida ("Southern Baptist"), cannot shield documents not privileged under state law or the state constitution by virtue of its unilateral decision of where to place the documents under the voluntary reporting system created by the Federal Act. Accordingly, we reverse the decision of the First District.

BACKGROUND

Article X, section 25, of the Florida Constitution, which is generally referred to by its ballot designation, Amendment 7, was proposed by citizen initiative and adopted in 2004. It provides patients "a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident." Art. X, § 25(a), Fla. Const. "Adverse medical incident" is defined broadly to include "any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient ...." Art. X, § 25(c)(3), Fla. Const. Amendment 7 gives patients, including those who become medical malpractice plaintiffs, access to any adverse medical incident record, including incidents involving other patients, sometimes called occurrence reports, created by health care providers.

As this Court discussed in Florida Hospital Waterman, Inc. v. Buster , 984 So.2d 478 (Fla. 2008), the purpose of Amendment 7 "was to do away with the legislative restrictions on a Florida patient's access to a medical provider's ‘history of acts, neglects, or defaults' because such history ‘may be important to a patient.’ " Id. at 488 (quoting Advisory Op. to the Att'y Gen. re Patients' Right to Know About Adverse Med. Incidents , 880 So.2d 617, 618 (Fla. 2004) ).³

As the First District stated:

In 2005, Congress ... [passed] the Patient Safety and Quality Improvement Act of 2005 (the [Federal] Act), Pub. L. No. 109–41, 119 Stat. 424, codified at 42 U.S.C. § 299b–21 et seq. ,... following a 1999 Institute of Medicine (IOM) report, To Err is Human: Building a Safer Health System , ... estimat [ing] that at least 44,000 people and potentially as many as 98,000 people die in United States hospitals each year as a result of preventable medical errors. The IOM report recommended that legislation be passed to foster the development of a reporting system through which medical errors could be identified, analyzed, and utilized to prevent further medical errors. See S. Rep. No. 108–196, at 3–4 (2003); H.R. Rep. No. 109–197, at 9 (2005). Through passage of the [Federal] Act, ... Congress sought to "facilitate an environment in which health care providers are able to discuss errors openly and learn from them." H.R. Rep. No. 109–197, at 9 (2005). See also Patient Safety and Quality Improvement, 73 Fed. Reg. 8,112, 8,113 (proposed Feb. 12, 2008).

S. Baptist Hosp. of Fla. , 178 So.3d at 105.

The Federal Act creates a voluntary, confidential, non-punitive system of data sharing of health care errors for the purpose of improving the quality of medical care and patient safety. The Federal Act envisions a system in which each participating health care provider or member establishes a patient safety evaluation system,⁴ in which relevant information would be collected, managed, and analyzed.

42 U.S.C. § 299b–21(6). After the information is collected in the patient safety evaluation system, the provider forwards the information to its patient safety organization, which then collects and analyzes the data and provides feedback and recommendations to providers on ways to improve patient safety and quality of care. See id. § 299b–24; 73 Fed. Reg. at 70,733. Information reported to patient safety organizations is also shared with a central clearing house, the Network of Patient Safety Databases, which aggregates the data and makes it available to providers as an "evidence-based management resource." See 42 U.S.C. § 299b–23.

In order to encourage and incentivize participation, within the Federal Act Congress created a protected legal environment in which providers would be comfortable sharing data "both within and across state lines, without the threat that the information will be used against [them]." 73 Fed. Reg. at 70,732. Privilege and confidentiality protections attach to the shared information, termed "patient safety work product," "to encourage providers to share this information without fear of liability." Id. ; see 42 U.S.C. § 299b–22(a) –(b). These protections are "the foundation to furthering the overall goal of the statute to develop a national system for analyzing and learning from patient safety events." 73 Fed. Reg. at 70,741.

The potential burden to providers of maintaining duplicate systems to separate federally protected patient safety work product from information required to fulfill state reporting obligations was addressed in the final rule documents from the Department of Health and Human Services. See id. at 70,742 –43. The solution was to allow providers to collect all information in one patient safety evaluation system where the information remains protected unless and until the provider determines it must be removed from the patient safety evaluation system and reported to the State. Id. at 70,742 ; 42 C.F.R. § 3.20 (2009) (defining patient safety work...