Florida Supreme Court’s opinion in Charles vs. Southern Baptist

A note to CPS’ participants and friends:

The Florida Supreme Court has adopted a restrictive interpretation of the PSQIA as it relates to Florida’s risk management and discovery laws.   Charles vs. Southern Baptist analyzes the relationship between the Patient Safety and Quality Improvement Act (the Act) and Florida laws that govern the development and protection of patient safety and quality material.  The Court’s opinion is available here.

Providers in Florida need to get local legal advice about the extent of the state law impact on their safety and quality work, as this is the first step in applying Charles.   Though the decision has no direct impact in other jurisdiction, it will be part of the ongoing discussion about PSO protections, so it is important 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.

 

The Court held that patient safety work and the related reports, when required by state law, could not be PSWP, using the same analysis put forth by AHRQ in its Guidance last year. (AHRQ Guidance document available here.) Because the Charles information was collected or maintained for a purpose other than submission to a PSO or for dual purposes, the Court held it is excluded from the definition of PSWP contained in the PSQIA and the final rule.

This finding (that the requested information was not protected PSWP) is important when examining the next issue, whether the PSQIA pre-empts Florida Amendment 7. That provision eliminates any protection for “any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.”  This discussion won’t delve into the detailed interaction of the PSQIA definitions and Amendment 7, though the relationship is complicated.  The important thing for PSOs and their participants in other states is the Florida Court’s somewhat gratuitous finding that the PSQIA could not supersede or pre-empt Amendment 7.

CPS doesn’t recommend that its PSO participants assume that Amendment 7 has pre-empted the PSQIA. There are several reasons why PSO participants should not view this as established doctrine (or in non-legal parlance, a “done deal”):

  • The Court’s pre-emption finding may well be dicta–an opinion stated by a court that is not necessary for its decision.  Dicta can be informative, but carries little true weight as precedent.  Viewed narrowly, this is just the Florida Supreme Court stating its opinion where it doesn’t really matter.
  • The Florida finding directly contravenes language in the PSQIA (Section 922): ‘‘(a) PRIVILEGE.—Notwithstanding any other provision of Federal, State, or local law, and subject to subsection (c), patient safety work product shall be privileged.”  This sets up a potential US Supreme Court appeal.  The US Supreme Court could either (1) accept the case and decide the pre-emption question or (2) find that the Florida Court’s statement was dicta and did not raise a real issue.

Applying Charles:

CPS has always advised its participants to divide their safety and quality work into 3 categories:

  1. Reports that have to be submitted under state or other federal law,
  2. Work that is required to be done and related documents that must be generated but not reported under state or other federal law, and
  3. Work that is not required by other law.

 

Under Charles, documents produced to meet an independent state law requirement (Category 1) are not eligible to be PSWP. Work product that results from other state-required activities (Category 2) is in a gray zone and the answer may depend on state law and how you have structured the work.  If you have questions, contact CPS.  Review your mandatory activities and reports (bullets one and two above) and design your PSES to include work that is done outside those categories. Your PSES can always consider non-PSWP; the deliberations and analysis within the PSES can be protected, but the non-PSWP work product cannot.

There remains an open issue of admissibility in court for any of this information.  That is another fight for another day.

CPS will keep you advised of new developments.

CPS will keep you advised of new developments.

 

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Diane Cousins & Michele Hilburn

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Nick Haines

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