Understanding the Patients’ Right to Know About Adverse Medical Incidents

In medical malpractice cases, Florida patients have certain legal rights when seeking information about about a health care provider’s past actions which may have hurt other patients. In 2004, Florida voters approved an amendment to the state’s constitution (known as Amendment 7) which expressly provides “patients have 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.” This means in a medical malpractice lawsuit, the plaintiff may seek broad discovery of a provider’s past incident records.

But there are some limits to Amendment 7’s reach. The amendment itself excludes any personal identifying information about another patient from discovery, as well as “any privacy restrictions imposed by federal law.” There are also other federal laws which preempt or override Amendment 7. One such law is the Patient Safety and Quality Improvement Act of 2005, which “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.” Under the federal act, health care providers establish a patient safety evaluation (PSE) system to collect information related to adverse incidents. The information collected by the PSE system is then submitted to a patient safety organization (PSO).

Congress intended to shield health care providers from the legal consequences of sharing any data through the PSE-PSO system. Accordingly, the federal act deems any “patient safety work product” (PSWP)—that is, confidential information shared through a PSE system—off-limits to private discovery in medical malpractice litigation. Obviously, this creates tension with Florida’s Amendment 7.

Hospital Records Kept from Malpractice Plaintiff

Recently, the Florida First District Court of Appeal in Tallahassee addressed this conflict between federal and state law. The ongoing case involves a medical malpractice action brought by the family of a woman who died following “a catastrophic neurological injury,” due allegedly to the defendant health care providers’ negligence. In the course of discovery, the plaintiffs, invoking Amendment 7, sought all documents “related to adverse medical incidents” at the defendant hospital. The hospital produced some documents but withheld others citing their privileged status under the federal act.

The plaintiffs argued only those documents created “solely” for the purpose of submission to a PSO are protected from discovery. The trial court agreed and ordered the hospital to answer the plaintiffs’ discovery requests. The hospital appealed.

The Court of Appeal held the documents were, in fact, privileged under federal law. The court said the “clear and unambiguous” language of the federal act protected any PSWP documents placed into a provider’s PSE system for submission to a PSO. In plain English, any incident report created by a hospital and put into its PSE system is beyond the reach of a malpractice plaintiff, even if such documents are later removed from the system. The court noted the federal law “gives the provider the flexibility to collect and maintain its information in the manner it chooses with the caution that nothing should be construed to limit any reporting or recordkeeping requirements under state or federal law.”

Need Help from a Medical Malpractice Lawyer?

The court’s decision may be unfortunate news for injured patients seeking justice against negligent health care providers. But it does not undercut the broader rights confirmed by Amendment 7. If you or a loved one have been a victim of negligent care, it is important you seek assistance from an experienced Clearwater medical malpractice lawyer. Contact the Law Office of Paul B. Genet, P.A., today if you would like to speak with an attorney right away.

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