PSOs Are Watching New Florida Decison about PSWP

August 13, 2014    |   By: Calevir

A Florida trial court order regarding the discovery of hospital incident reports is circulating in PSO circles.   (Charles v. Southern Baptist Hosp. et al., Duyal County, Case No. 15-2012-CA-002677.)   The order expresses a very restrictive view of PSWP (more below) and the hospital has expressed an intention to appeal the order.   As a trial court order in Florida, it has no value as precedent in any other jurisdiction, even within Florida.   However, the order will be part of the ongoing discussion about PSO protections, so CPS wants its stakeholders to understand it. The key facts:

  • Florida has very specific requirements for hospital risk management, including staff licensure and submission of certain incident reports to the state.   The statute also requires the hospital to gather information via incident reports that may not be reported to the state, but which is necessary to carry out the mandated activities.
  • The discovery request specifically asked for reports prepared pursuant to parts of the statute.
  • The court recognized the applicability of the Patient Safety Act and accepted that the hospital had a PSES and that the information was utilized appropriately in that context, and therefore would be protected PSWP except for the state risk management and reporting requirements.
  • The court found that the need to gather the information under state law and to report some of it precluded it from being protected PSWP.

CPS and other PSOs dispute the court’s interpretation, based on clear language in AHRQ’s Final Rule [Federal Register, Part III, Vol. 73, No. 226, at 70742 (Nov. 21, 2008).] The relevant part of the rule says, “nor does [PSWP] include information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system.”   This provision and the relevant parts of the preamble quoted below have been interpreted to mean that the specific information reported to an outside entity cannot be protected PSWP, for example infection surveillance data.   There is not support in the Rule for the broad finding by the Florida court that corollary information gathered as part of a mandatory reporting process cannot be protected.   In fact, the Preamble actually says that all the relevant information can be gathered and protected inside the PSES until specific, reportable data has to be removed from the PSES for reporting:

All of this information, collected in one patient safety evaluation system, is protected as patient safety work product unless the provider determines that certain information must be removed from the patient safety evaluation system for reporting to the state. Once removed from the patient safety evaluation system, this information is no longer patient safety work product…. Providers have the flexibility to protect this information as patient safety work product within their patient safety evaluation system while they  consider whether the information is needed to meet external reporting obligations. Information can be removed from the patient safety evaluation system before it is reported to a PSO to fulfill external reporting obligations.

In spite of this very specific advice from AHRQ in the Final Rule, the Florida court held that “[i]t is the collection and maintenance of information and records for a regulatory purpose, not the actual provision of that information to the government, that takes information out of the ambit of the PSQIA.”   The PSO community respectfully disagrees.

A copy of the order and other judicial interpretations of the PSQIA are available on the CPS website.   If you have questions about these cases or other aspects of PSO participation, contact the Center.

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