Recently, the First District Court of Appeal prevented discovery orders requiring Southern Baptist Hospital of Florida Inc. to provide access to several reports of adverse incidents that occurred at the hospital over a three-year period. The discovery orders were issued in a suit brought by a man whose sister suffered a catastrophic neurological injury at Baptist.
Amendment 7, adopted in 2004, allows for broad access to reports of adverse medical events — not just for plaintiffs already embroiled in medical malpractice litigation but even for potential patients. But this broad access contradicts against the Patient Safety Act, enacted in 2005 which sets up a system of patient safety organizations and a national database to report adverse events. The statute set up confidentiality provisions for patient safety work product to encourage participation by hospitals and other providers.
The appeals court ruled that the federal Patient Safety and Quality Improvement Act, which aimed to build a system where medical providers could share medical error data confidentially so as to identify systemic problems and improve outcomes, preempts Florida’s Amendment 7, a citizen initiative that gives individuals the right to access incident reports from a health care facility regarding adverse medical events.
The decision runs counter to an unpublished order issued by the Fourth District Court of Appeal earlier this year, a fact that the plaintiffs’ attorneys pointed out last week in an effort to get the Florida Supreme Court to take up the case as one of great public importance. We expect that the contradicting orders will set up a fight that could ultimately limit the scope of malpractice cases. As Bryan Gowdy of Creed & Gowdy PA, argued to the First DCA for the plaintiffs “This ruling means that patients who are injured by medical malpractice will be denied vital patient safety information that they previously had a constitutional right to under the Florida Constitution.”
Based on the ruling, Mr. Gowdy filed a motion for certification Nov. 2 with the state’s high court.
Plaintiff lawyers across the state are concerned with the ruling. They say they’re not sure the hospitals are actually generating the required reports and they believe that many facilities may be substituting one type of report for another.
It’s not just in Florida where the confidentiality provisions of the Patient Safety Act have gone head to head with state regulations. The Kentucky Supreme Court — the only state supreme court to rule on this issue so far — last year ruled in Tibbs v. Bunnell that incident reports may be allowed in discovery if they are prepared according to state laws regulating health care facilities.
The U.S. Supreme Court has asked the solicitor general to weigh in on whether or not it should take up the Kentucky hospital’s petition to hear the case.
The case is Southern Baptist Hospital of Florida Inc. v. Charles et al., case number 1D15-0109, in the First District Court of Appeal of Florida.