S. Baptist Hosp. of Fla., Inc. v. Charles
| Decision Date | 28 October 2015 |
| Docket Number | No. 1D15–0109.,1D15–0109. |
| Citation | 178 So.3d 102 |
| Parties | SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., Petitioner, v. Jean CHARLES, Jr., as Next Friend and Duly Appointed Guardian of his Sister, Marie Charles, and her Children, Angel Alston and Jazmin Houston, Minors, and Ervin Alston; Kristin Fernandez, D.O.; Yuval Z. Naot, M.D.; Safeer A. Ashraf, M.D.; Integrated Community Oncology Network, LLC ; Andrew Namen, M.D.; Gregory J. Sengstock, M.D.; John D. Pennington, M.D.; and Eugene R. Bebeau, M.D.; and Robert E. Rosemund, M.D., Respondents. |
| Court | Florida District Court of Appeals |
William E. Kuntz, Michael H. Harmon, and Earl E. Googe, Jr., of Smith, Hulsey & Busey, Jacksonville; George N. Meros, Jr., and Andy V. Bardos of GrayRobinson, P.A., Tallahassee; and Jack E. Holt, III, of Growler, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Petitioner.
Katherine E. Giddings, Diane G. Dewolf, and Kristen M. Fiore of Akerman L.L.P., Tallahassee; Kirk Davis of Akerman L.L.P., Tampa; and Kathleen T. Pankau of The Joint Commission, Oakbrook Terrace, IL, pro hac vice; for Amicus Curiae The Joint Commission.
Brian S. Pantaleo of Locke Lord, LLP, West Palm Beach; Paul E. Dwyer, and Benjamin R. Davis of Locke Lord, LLP, Providence, RI, pro hac vice; Margaret C. Binzer of Polsinelli PC, Washington, DC, pro hac vice, for Amicus Curiae Alliance for Quality Improvement and Patient Safety.
Andrew S. Bolin of Beytin, McLaughlin, McLaughlin, O'Hara, Bocchino & Bolin, Tampa for Amici Curiae The Patient Safety Organization of Florida and ECRI Institute.
Joshua P. Welsh, Buss Ross, P.A., Tampa; and Michael R. Callahan and James W. Hutchinson of Katten Muchin Rosenman LLP, Chicago, IL, pro hac vice, for Amici Curiae Clarity PSO, Quality Alliance Patient Safety Organization, Schumacher Group Patient Safety Organization, Inc., UHC Safety Intelligence 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, IASIS Healthcare LLC, Florida Health Sciences Center, Inc. d/b/a Tampa General Hospital, ECRI Institute PSO, Strategic Radiology Patient Safety Organization LLC, Ascension Health Patient Safety Organization, Verge Patient Safety Organization, Quantros Patient Safety Organization, Quality Circle for Healthcare, Inc., PsychSafe, UHS Acute Care PSO, Midwest Alliance for Patient Safety, Crestview Hospital Corporation, Lake Wales Hospital Corporation, Manatee Memorial Hospital, L.P., La Amistad Residential Treatment Center, LLC, Adventist Health System/Sunbelt, Inc., American Medical Association, Florida Medical Association, American College of Radiology, and American Society for Radiation Oncology.
Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville; William D. Thompson, Ponte Vedra; John J. Schickel, Howard C. Coker, Charles A. Sorenson, and Aaron Sprague of Coker, Schickel, Sorenson, Posgay, Camerlengo & Iracki, Jacksonville; and Borden R. Hallowes, St. Simons, GA; for Respondents Jean Charles, Jr., and Ervin Alston.
P. Scott Mitchell and Kathryn L. Hood of Fuller, Mitchell, Hood & Stephens, Tallahassee, for Respondents Yuval Z. Naot, M.D., Safeer A. Ashraf, M.D., and Integrated Community Oncology Network.
John R. Saalfield and Franklin Duke Regan of Stoudmire & Stone, P.A., Jacksonville for Respondent John D. Pennington, M.D.
W. Douglas Childs and Linda M. Hester of Childs, Hester & Love, P.A., Jacksonville for Respondent Gregory J. Sengstock, M.D.
Jesse F. Suber of Henry, Buchanan, Hudson, Suber & Carter, P.A., Tallahassee for Respondent Andrew Namen, M.D.
Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for Amicus Curiae Florida Justice Association.
This case concerns the intersection of Florida's Amendment 7, found in Article 10, section 25, of the Florida Constitution and the federal Patient Safety and Quality Improvement Act of 2005. The petitioner seeks certiorari review of three discovery orders from the circuit court, arguing that the court erroneously compelled the production of documents that were privileged and confidential under federal law. We find the case ripe for review, grant the petition, and quash the orders below.
Article 10, 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 "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 has become an important discovery tool for medical malpractice plaintiffs as it gives broad access to adverse medical incident records from medical providers. Amendment 7 provides a means, albeit often a punitive one, to improve the quality of healthcare by bringing medical errors to light.
While medical malpractice litigation is one tool to address medical errors, other tools have emerged that seek to proactively prevent, rather than punish, medical errors. In 2005, Congress took action to improve patient safety in the healthcare industry as a whole with the passage of the Patient Safety and Quality Improvement Act of 2005 (the Act), Pub.L. No. 109–41, 119 Stat. 424, codified at 42 U.S.C. § 299b–21 et seq. The Act was passed following a 1999 Institute of Medicine (IOM) report, To Err is Human: Building a Safer Health System, in which IOM estimated 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 Act and its privileges, 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 February 12, 2008).1
The Act was intended to replace a "culture of blame" and punishment with a "culture of safety" that emphasizes communication and cooperation. See S.Rep. No. 108–196, at 2 (2003); 73 Fed.Reg. at 70,749. The Act creates a voluntary, confidential, non-punitive system of data sharing of healthcare errors for the purpose of improving the quality of medical care and patient safety. The Act envisions that each participating provider or member would establish a patient safety evaluation system (PSE system) in which relevant information would be collected, managed, and analyzed. 42 U.S.C. § 299b–21(6). After the information is collected in the PSE system, the provider would forward it to its patient safety organization (PSO), which serves to collect and analyze the data and provide feedback and recommendations to providers on ways to improve patient safety and quality of care. See 42 U.S.C. § 299b–24 ; 73 Fed.Reg. at 70,733. Information reported to PSOs would also be 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, a protected legal environment was created in which providers would be comfortable sharing data both within and across state lines "without the threat of information being used against [them]." See 73 Fed.Reg. at 70,732. Privilege and confidentiality protections attach to the shared information, termed "patient safety work product" (PSWP), "to encourage providers to share this information without fear of liability[.]" 73 Fed.Reg. at 70,732; 42 U.S.C. § 299b–22(a) –(b). The 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 PSWP from information required to fulfill state reporting obligations was addressed in the final rule documents from HHS. See 73 Fed.Reg. at 70,742. The solution was to allow providers to collect all information in one PSE system where the information remains protected unless and until the provider determines it must be removed from the PSE system for reporting to the State. 73 Fed.Reg. at 70,742 ; 42 C.F.R. § 3.20(2)(ii) (). The information becomes PSWP upon collection within a PSE system, but loses PSWP protection once the information is removed from the PSE system by the provider.
In this particular case, the petitioner hospital, Southern Baptist Hospital of Florida, Inc. (Baptist), participates in information sharing under the Act and has established a PSE system in which it collects, manages, and analyzes such information for reporting to its PSO—PSO Florida. The record shows that Baptist's employees are instructed to enter information into the PSE system with the assurance of confidentiality based upon the PSWP protections in the Act. Baptist collects and maintains reports, which it calls "occurrence reports," of events that are not consistent with the routine operations of the...
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Charles v. S. Baptist Hosp. of Fla., Inc.
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